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Maigueside Communications Ltd. v. Independent Radio and Television Commission [1997] IEHC 125; [1998] 4 IR 115 (18th July, 1997)
URL: http://www.bailii.org/ie/cases/IEHC/1997/125.html
Cite as:
[1997] IEHC 125,
[1998] 4 IR 115
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Maigueside Communications Ltd. v. Independent Radio and Television Commission [1997] IEHC 125; [1998] 4 IR 115 (18th July, 1997)
THE
HIGH COURT
JUDICIAL
REVIEW
Record
No. 1997/126 JR
BETWEEN
MAIGUESIDE
COMMUNICATIONS LIMITED, NEW LIMERICK FM LIMITED,
LIMERICK
95 FM LIMITED AND MICHAEL RICHARDSON, JOHN FRANKS
AND
WENDI FERRIS-RICHARDSON (TRADING AS BIG L RADIO LIMERICK)
APPLICANTS
AND
THE
INDEPENDENT RADIO AND TELEVISION COMMISSION
AND
THE MINISTER FOR TRANSPORT ENERGY AND COMMUNICATIONS
RESPONDENTS
JUDGMENT
of Mrs. Justice McGuinness delivered the 18th day of July, 1997
The
first named Respondent ("the Commission") was established under
Section 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
named Respondent, the Minister for Energy and Communications, were dismissed by
Order of this Court (Kelly J.) on the 6th day of May, 1997. The Commission had
previously contracted with a company called Radio Limerick One Limited 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 of
Radio
Limerick One Limited -v- Independent Radio and Television Commission
[1997]
2 ILRM 1, 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.
1. 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 Sections 5 and 6 of the 1988 Act. The process to be
carried out by the Commission under Sections 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 Section 5 sub-sections 4, 5, 6 and 7 of the 1988 Act 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 sub-section (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 sub-section (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 sub-section
(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 1988 Act 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 applicants 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 application
accords with good economic principles;
(c) the
quality, range and type of the programmes proposed to be provided by each
applicant or, if there is only one applicant, by that applicant;
(d) the
quantity, quality, range and type of programmes in the Irish language and the
extent of programmes relating to Irish culture proposed to be provided;
(e) the
extent to which the applicant will create within the proposed sound
broadcasting service new opportunities for Irish talent in music, drama and
entertainment;
(f) the
desirability of having a diversity of services in the area specified in the
notice under Section 5(5) catering for a wide range of tastes including those
of minority interests;
(g) the
desirability of allowing any person, or group of persons, to have control of,
or substantial interests in, an undue number of sound broadcasting services in
respect of which a sound broadcasting contract has been awarded under this Act;
(h) the
desirability of allowing any person or group of persons, to have control of ,
or substantial interests in, an undue amount of the communications media in the
area specified in the Notice under Section 5(5);
(i)
the
extent to which the service proposed -
(i) serves
recognisably local communities and is supported by the various interests in the
community, or
(ii) serves
communities of interest, and
(j) any
other matters which the Commission considers to be necessary to secure the
orderly development of sound broadcasting services."
2. In
accordance with this statutory framework the Commission in the latter months of
1996 sought expressions of interest in securing the contract for the Limerick
area. It appears that they received expressions of interest from some twenty
persons or groups. In accordance with Section 5(4) the Commission in January
of this year by public advertisement sought applications from persons or bodies
wishing to secure a sound broadcasting contract for the provision of a local
sound broadcasting service in Limerick City and county. The advertisement
stated that further information and a guide to submissions necessary to
complete applications would be available on request from the Commission's
offices and that the closing date for applications was the 7th March, 1997.
3. The
guidelines for the manner in which applications should be presented to and
dealt with by the Commission were sent to all intending applicants. This was a
substantial and detailed document headed Guide to Submissions Limerick City and
County. So far as it is material it was divided into five parts:
1. Introduction;
2. Determination
of applications for award of the contract;
3. Format
of applications;
4. Outline
of the applications;
5. Application
procedure.
4. The
introduction indicated that applications were being sought in accordance with
Section 5 of the Act. Part 2 of the document indicated that in determining the
most suitable applicant for the award of the sound broadcasting contract, the
Commission was obliged to have regard to the suitability of applicants pursuant
to the Act and in particular Section 6 thereof. Matters to which the
Commission would have to have regard were then set out.
5. Part
5 of the Guidelines specifying the application procedure so far as it is
material was as follows:
"The
following procedures will operate in respect of each application:-
The
decision making process will be a two stage process. Stage 1: the first stage
will involve the Commission in making an individual assessment of each written
submission, with a view to qualifying suitable applications for the second stage.
The
decision as to which applicant groups qualify for Stage 2 is entirely within
the discretion of the Commission and no applicant group has a right to make an
oral presentation unless selected to do so by the Commission.
Stage
2: applicant groups who have not been eliminated during stage 1 will be
invited to make an oral presentation at a public hearing, which will be held in
Limerick, in April. A decision will be taken by the Commission following Stage
2 of the application process and this decision will be conveyed to each
applicant."
6. The
Commission received nine applications in all. On 10th March, 1997 the
Commission issued a press release listing the nine applicant groups. The press
release went on to say:
"The
decision making process will be in two stages
'the
first stage will involve the Commission in making an individual assessment of
each written submission, with a view to qualifying suitable applications for
the second stage. This will be finalised by the Commission at its meeting on
Thursday the 20th March', Michael O'Keeffe, IRTC Chief Executive, said
.
'Applicant groups who have not been eliminated during Stage 1 will be invited
to make an oral presentation at public hearings, which are scheduled to take
place in the Castletroy Park Hotel, Limerick, on Thursday and Friday 3rd and
4th April next. The Commission hopes to make its decision by the end of April'
Michael O'Keeffe concluded"
7. Copies
of all the nine applications were sent to each member of the Commission and a
meeting was held on the 20th March, 1997 for the purpose, inter alia, of
selecting a short list of applicants who would proceed to Stage 2 and who would
make an oral submission. It appears that a quorum of five members of the
Commission attended this meeting. In addition a further member made his views
known in writing and one other member (who was at the last minute prevented by
outside circumstances from attending the meeting) made his views known in a
telephone conversation with Mr. Michael O'Keeffe, Chief Executive of the
Commission. At the meeting a short list of four applicants, which did not
include any of the four Applicants in these proceedings, was selected by the
Commission.
8. On
21st March 1997 the Commission issued another press release headed "Four
applicants for Limerick licence invited to public hearings in early April".
This press release was marked "for release 2.00 p.m. Friday 21st March, 1997".
It announced the names of the four short-listed groups and asked them to attend
a public hearing at Castletroy Hotel, Limerick on Friday 4th April, 1997. The
press release quoted Mr. Michael O'Keeffe as saying
"the
Commission received nine applications for an independent radio licence for
Limerick. The decision making process for this licence is in two stages. The
first stage involved the Commission in making an individual assessment of each
written submission with a view to qualifying suitable applicants for the second
stage. This process was completed by the Commission at its meeting yesterday
and resulted in four applicants qualifying for the second stage. We have
invited these applicants to attend a public hearing on Friday 4th April next."
9. The
Chief Executive, Mr. O'Keeffe, who was cross-examined on his affidavit by
Counsel for the Applicants, explained that he was anxious to notify the
unsuccessful applicants before the issue of the press release. He accordingly
arranged for his secretary to telephone each of those groups to notify them
that they would be receiving a fax from the Commission. He then sent each
unsuccessful group by fax and subsequently by post the following letter:
"Thank
you for your recent application in respect of the licence to operate a sound
broadcasting service in the Limerick City and County area.
At
its meeting on 20th March, 1997 the Commission decided to qualify four
applicants for the second stage of the application process. I regret to inform
you that your application did not qualify for the next stage. For your
information, the qualifying applications were as follows."
and
the letter proceeds to list the four qualifying applications.
10. The
unsuccessful groups were very naturally disappointed. They had spent
considerable time and money in putting in their applications. In an affidavit
on behalf of the Applicants sworn on the 8th May, 1997 Mr. Patrick Fitzgerald
stated as follows:
"As
adumbrated in my grounding affidavit, Mr. Tom Nolan advised
Mr.
O'Keeffe
in
a telephone conversation that the disqualified applicants were most disgruntled
and required reasons for the said Respondents' decision. Mr. O'Keeffe informed
him that no further discussion about the matter would be entertained and that
if the unsuccessful
Applicants
wished to litigate, the proceedings would be most vigorously defended. Since
swearing that Affidavit, I am informed by Mr. Michael Richardson, one of the
Applicants herein, that in a telephone conversation with Mr. O'Keeffe on 21st
March last, he specifically requested the reason for the first Respondent's
decision to deny the Applicants a hearing and that Mr. O'Keeffe categorically
and emphatically informed him that there was no question whatever of furnishing
any reasons for the said Respondent's decision."
11. These
averments which are, of course, hearsay were put to Mr. O'Keeffe in
cross-examination. He did not recall any telephone or other conversation with
12. Mr.
Richardson and denied that any such took place. He did not recall a telephone
conversation with Mr. Tom Nolan but did recall meeting him at a lunch in Dublin
early the following week. Mr. Nolan had told him that people had been very
disappointed and had asked why his group had not been successful. In reply Mr.
O'Keeffe had explained the selection procedure to him in some detail, but went
no further. Mr. Nolan then told him that they were considering their legal
position and that he might be getting a letter.
13. On
the 2nd April, 1997 the solicitors for the Applicants wrote to Mr. O'Keeffe as
follows:
"Dear
Sir,
We
act on behalf of the above named clients and we wish to put you on notice that
we will be applying tomorrow morning to the High Court for a judicial review to
quash the decision of the Commission communicated to our clients by letter
dated the 21st March, 1997
refusing
to consider further their respective applications for a sound broadcasting
licence in the Limerick City and County area. In addition to and inter alia
with other reliefs our clients will be seeking to prevent the Commission from
making any determination or award in favour of any applicant for such a licence.
We
understand that Mr. Tom Nolan of New Limerick FM Limited informed you last
week that our clients were very unhappy at the procedures adopted by the
Commission in refusing to consider further each of their applications for a
sound broadcasting licence in the Limerick City and County area. We are
further instructed that Mr. Nolan informed you that legal advice was being
sought with a view to challenging the validity of the procedures adopted by the
Commission regarding the applications for such broadcasting licence."
14. On
3rd April, 1997 the Applicants obtained leave from this Court (Moriarty J.) to
issue judicial Review proceedings against the Respondents. The Applicants'
original statement of grounds ranged very widely, but the learned Moriarty J.
limited the grounds to those numbered 11(C)(E)(F) and (G) in the application,
as follows:
"In
making the decision not to consider further the applications of the Applicants,
the first Respondent acted unlawfully, unreasonably and capriciously and erred
and misdirected itself in law and its position was procedurally irregular,
ultra vires and void in that it:-
(c) failed
to give any or any due or adequate consideration to the applications of the
Applicants or any of them.
(e) failed
to give any or any reasons sufficient to enable the Applicants or this
honourable Court to ascertain whether the powers of the said Respondents had
been validly or lawfully exercised or exercised in accordance with the
requirements of natural and constitutional justice;
(f) failed
to accord to the Applicants a fair hearing or fair procedures;
(g) failed
to have any or any due or proper regard to the Applicants' legitimate
expectation that, subject to their applications compliance as to form, content
and substance with the published guidelines, they would be considered pari
passu with those of all other applicants."
15. During
the course of the proceedings the Applicants sought an Order for Discovery and
affidavits of discovery were sworn. In particular the Applicants sought
discovery of the applications of the four applicants successful in being
selected for the second stage, in particular so that these might be studied and
compared with the Applicants own applications by their proposed expert witness,
Dr. Colm Kenny. This discovery was refused by this Court and on appeal was
also refused by the Supreme Court. In a succinct judgment delivered on the
10th June, 1997 Barron J. stated (at page 5 of the judgment):
"The
Applicants submit that the Commission had no power to exclude them from Stage 2
provided that their applications qualified them as proper applications within
the provisions of Section 6(2) of the Act. They submit that they did so
qualify and they seek discovery of the successful applications to show that the
Commission could not rationally have come to a decision that they did not so
qualify
.
The
basis of this submission is to be found in the use of the word 'qualifying' in
that part of the application procedure relating to Stage 1. It can be seen
therefore and was accepted by Counsel that the Applicants' case relies not upon
any statutory provision but upon the wording of the guidelines. Taking the
sentence in which the word qualifying appears on its own, there is no ground
for this submission. It refers merely to those applicants for Stage 2.
However, taking the entire of this part of the guidelines as a whole, it is
quite clear that such is its meaning, that is to say that the word qualifying
applies to those who are selected as qualifying for Stage 2. The Applicant's
submission must be rejected. They had no right to be allowed to enter Stage 2
merely
because
their applications reached a particular level, if in fact they did.
The
objection of the Applicants to their exclusion is in reality a challenge to the
decision of the Commission. That is not open to them. As the grounds and
principles upon which leave to seek judicial review have been given indicate,
it is the decision-making process and not the decision itself which is
challenged or open to challenge. It follows therefore that the applications
are not relevant documents to any issue arising in these proceedings".
16. When
the Judicial Review proceedings came on for hearing before this Court, Mr.
Callan, Senior Counsel for the Applicants, submitted that there were two
questions before the Court: firstly, whether fair procedures were employed by
the Commission at the stage of short listing the applicants qualifying for
Stage 2, and secondly, whether or not the Commission were at fault in not
giving the Applicants reasons for their failure to qualify for Stage 2. This
summary of the Applicants' case is in conformity with what is set out by
17. Barron
J. in his judgment of 10th June and is, indeed, the nub of the case. Before
considering the two questions set out above and the law applicable to them,
however, I feel that I should refer briefly to what appears to be a related
claim made by the Applicants and which appears in sub-paragraph (G) of the
statement of grounds for judicial review. This claim is that, because in the
majority of previous similar competitions for sound broadcasting contracts all
applicants were granted an oral hearing, the Applicants have a legitimate
expectation that each of them should have been granted an oral hearing provided
their applications were proper applications under Section 6 of the 1988 Act,
and were not defective in some obvious way.
18. In
the first place, this claim of legitimate expectation can have little basis in
fact. While it is admitted by the Commission that in many, though not all,
previous competitions all applicants obtained an oral hearing, it was made
abundantly clear from the beginning that such would not be the case in this
competition. As I have already pointed out, the guidelines sent to all
applicants clearly set out the two stage process and stated that:
"The
decision as to which applicant groups qualify for stage 2 is entirely within
the discretion of the Commission and no applicant group has a right to make an
oral presentation unless selected to do so by the Commission
."
19. The
press release issued on 10th March, 1995 when all nine applications had been
received, stated:
"The
First Stage will involve the Commission in making an individual assessment of
each written submission with a view to qualifying suitable applications for the
second stage
....Applicant
groups who have not been eliminated during Stage 1 will be invited to make an
oral presentation at public hearings...."
20. The
Applicants were well aware of this position and indeed in a letter from New
Limerick FM to its investors dated 18th March, 1997 Mr. Tom Nolan stated:
"We
have submitted our written application which was the first stage of the
process. I understand there were nine submissions including ours and the
Commission are currently assessing these with a view to selecting some to go
forward to Stage Two, which will be in the form of oral hearings to take place
in Limerick around April 3rd or 4th. The Commission are expected to announce
the names of those selected for Stage 2 after their monthly meeting this
Thursday March 20th. With the help of Caimin Jones and Joe Moreau among
others, I have put a very well focused submission together for Stage 1 so I am
confident that we will be selected for Stage 2. However, we cannot be sure, of
course, until Friday at which stage I will update you."
21. Even
if the Commission had at all times previously granted oral hearings to every
applicant, that does not in itself create a legitimate expectation that all
future competitions will be run in the same way. In
Egan
-v- Minister for Defence and Others
(unreported
24th November, 1988) the learned Barr J. surveyed the doctrine of legitimate
expectation in this jurisdiction. In that case the Plaintiff who was an
officer in the air corps sought early retirement to take up a civilian post.
He claimed, correctly, that in the past such requests for early retirement by
officers had virtually always been granted. Having carefully considered the
case law, Barr J. said (at page 15 of his judgment):
"In
the light of the foregoing commentary on the doctrine of 'legitimate
expectation' , I am satisfied that it has no application in the present case.
Even if I were to proceed from the premise (which has not been proved) that in
1966 when the Applicant joined the army there was a long established and
universally recognised practice that officers of five years standing and
upwards who applied to the Minister for permission to retire early were duly
given leave to do so
and
that that practice continued until mid-1988, it would not derogate from the
Minister's statutory right to refuse permission on reasonable grounds in a
particular case. Such a practice, however firmly entrenched it may have been
in the life of the permanent defence force, did not amount to an implied
promise or representation (as envisaged by the Chief Justice in
Webb
-v- Ireland
)
made by the Minister to the officer corps of the permanent defence force that
permission to retire would be granted by him in every case as of course."
22. I
consider that the dictum of the learned Barr J. is equally applicable to the
circumstances of the present case.
23. In
any event, it seems to me that the claim of legitimate expectation is another
form of the submission made to the Supreme Court in the discovery application
in this case - that the Commission had no power to exclude the Applicants from
Stage 2 provided that their application qualified them as proper applications
within the provisions of Section 6(2) of the Act. That submission was
categorically rejected by Barron J. in his judgment of
10th
June, 1997 and his decision is, of course, binding on this Court. While, as
the learned Barron J. points out, the meaning of the Commission's description
of the two stage procedure is quite clear, it seems to me that part of the
difficulty of the Applicants may have been caused by the use of the word
"qualifying" in phrases such as "with a view to qualifying suitable
applications for the second stage". It appears to me that what is really meant
is "with a view to
selecting
suitable applications for the second stage" as essentially what was being
carried out by the Commission was a selection procedure for a short list such
as is very generally carried out in competitions both for contracts and for
employment in various posts. The use of the word "qualifying" in this phrase
is, in my opinion, a rather strange and very possibly incorrect use of the
English language and may have created a wrong impression in the mind of the
Applicants. However, when a description of the two stage application procedure
is read as a whole its meaning is perfectly clear.
24. I
now return to the two main points put forward by Mr. Callan, Senior Counsel, on
behalf of the Applicants. The two points are in essence inter-connected. The
Applicants can at present put forward no concrete or actual evidence of unfair
procedures by the Commission in making their selection of the four applicants
who were to proceed to
stage
2 (other than their contention that all applications should have been granted
oral hearings). However, they submit that the refusal of the Commission to
give them any reasons for their failure to be selected for stage 2 in itself
prevents them from knowing whether the procedures employed by the Commission
were fair or unfair, and this effectively denies them the remedy of
challenging those procedures before this Court.
25. In
making this submission Mr. Callan relies in particular on the case of
International
Fishing Vessels Limited -v- The Minister for the Marine
[1989] IR 149. In that case the Applicant company had sought a sea fishing
licence from the Minister for the Marine. The application was refused and no
reasons for the refusal were given. The applicant's solicitors immediately
sought for detailed reasons to be furnished in writing. The Minister replied
as follows (as set out in the head note to the case):
"The
Minister for the Marine has adjudicated on your client's application for sea
fishing boat licences; prior to his arriving at a decision, your client was
afforded ample opportunity to make representations. The Minister does not
feel, given the circumstances of these applications, which are well known to
your client, that he is obliged either to enter into further discussions either
by way of oral hearing or give reasons for his decision. The Minister, as a
matter of policy, does not give reasons for the manner in which he exercises
his discretionary power; neither is he obliged, under the relevant legislation,
to do so."
26. The
learned Blayney J. held, in granting the orders sought by the Applicant, that
in taking a decision of such crucial importance for the Applicant the Minister
was under a duty to act fairly and judicially and that the performance of such
duties was subject to judicial review. The provision of reasons by the
Minister was an essential pre-requisite to ensure fairness of procedures in the
exercise by the Applicant of such right to Judicial Review. The learned judge
also held that on the facts the Respondent's failure to provide reasons was
manifestly unfair since if the reason for refusal was non-compliance with
particular conditions but such conditions were not specified or identified by
the Respondent then the Applicant was thereby deprived of any opportunity of
complying with those conditions so as to be in a position to re-apply for and
obtain a licence.
27. At
page 155 of the report the learned judge states:
"It
is common case that the Minister's decision is reviewable by the Court.
Accordingly, the applicant has the right to have it reviewed. But in refusing
to give his reasons for his decision the Minister places a serious obstacle in
the way of the exercise of that right. He deprives the applicant of the
material it needs in order to be able to form a view as to whether grounds
exist on which the Minister's decision might be quashed. As a result, the
applicant is at a great disadvantage, firstly, in reaching a decision as
whether to challenge the Minister or not, and secondly, if he does decide to
challenge it, in actually doing so, since the absence of reasons would make it
very much more difficult to succeed. A procedure which places an applicant at
such a disadvantage could not in my opinion be termed a fair procedure,
particularly where the decision which the applicant wishes to challenge is of
such crucial importance to the applicant in its business......
The
giving of reasons by the Minister could in one case be of particular importance
as it would enable an applicant to meet the grounds on which the licence had
been refused and, having done so, reapply."
28. Mr.
Callan went on to refer to a number of other cases ranging from
Dunleavy
-v- Irish Land Commission
[1952] IR 86 and the 1956 case of
State
(McGeough) -v- Louth County Council
reported at 107 ILTR 13 to the recent decision of the learned Carroll J. in
Navan
Tanker Services Limited -v- Meath County Council and others
(unreported
13th
December, 1996).
29. I
do not think that I would be doing Mr. Callan's learned and thorough
submissions an injustice if I summed up the purport of the cases to which he
referred me as that public bodies, and in particular statutory bodies such as
the Commission, must act fairly and judicially in making decisions, and that
they must also act openly (or what is now so frequently referred to in
political circles as transparently) by making clear the reasons for their
decisions, at the very least when they are requested to do so.
30. He
submitted that the minutes of the Commission's meeting of 20th March, 1997
contained a bare record of the decision taken to select the four successful
applicants for Stage 2 - despite the fact that the Commission's own standing
orders for Regulation of Meetings of the Commission state at paragraph 3(b) that:
"Minutes
shall provide an extended record of the discussions which take place,
reflecting the thrust and tenor of these discussions, as well as providing a
record of decisions reached."
31. No
reasons whatever for the rejection of the Applicants' applications appear in
the minutes, nor were any given by Mr. O'Keeffe other than a statement in his
affidavit sworn the 10th April, 1997 that the four applicants selected for
Stage 2 were of a higher standard than the Applicants' applications and that
the decision reached by the Commission was a matter of judgment within the
expertise of the Commission. Without reasons being given, the Applicants could
not judge whether the decision of the Respondents was taken rationally and
fairly.
32. On
behalf of the Respondent Mr. Hardiman, Senior Counsel, argued that decision
making bodies, even where they were statutory bodies, were by no means always
required to give reasons for their decisions. The procedure of two stage
selection, with consideration of all the applications by each individual member
of the Commission, was a perfectly reasonable and fair one, and the giving of
reasons was not only unnecessary but in this type of situation could well be
invidious and undesirable.
33. Mr.
Hardiman pointed out that in his judgment in the case of
McCormack
-v- The Garda Siochana Complaints Board and Others
(unreported 28th January, 1997) the learned President of the High Court had
comprehensively dealt with the question of the giving of reasons by bodies
charged, whether by statute or by other public duty, with the making of
decisions.
34. At
page 17 of his judgment the learned President states:
"The
rules of natural justice are rules of the common law which are applied in our
courts when considering the validity of administrative decisions. It is well
established by the courts in England that the rules of natural justice do not
require that reasons should be given for administrative decisions
(
R
-v- Gaming Board for Great Britain
[
1970] 2 QB 417 ) and in England it was considered necessary for Parliament to step in
and require that "tribunals" (as defined) should be required to do so
(tribunals and Enquiries Act, 1971), whilst in Australia (another common law
country) the federal parliament went further and enacted that this principle
should be extended to administrative decisions generally (administrative
decisions (judicial review) Act, 1977). In this country the Oireachtas has
remained inactive in this field. In theory our courts would be free to extend
the common law principles of natural justice as they are judge made rules but
it would seem preferable that the existence, scope and nature of the duty to
provide reasons for an administrative decision should be considered in the
light of the constitutional requirement relating to what the courts have termed
'constitutional justice' , rather than as an extension of the common law rules
of natural justice.
It
is now established as part of our constitutional and administrative law that
the constitutional presumption that a statute enacted by the Oireachtas
intended that proceedings, procedures, discretions and adjudications permitted,
provided for, or prescribed by Acts of the Oireachtas are to be conducted in
accordance with the principles of constitutional justice (see
East
Donegal Co-operative Limited -v- Attorney General
[1970]
IR 317, 341).
It
follows therefore that an administrative decision taken in breach of the
principles of constitutional justice will be an ultra vires one and may be the
subject of an Order of Certiorari. Constitutional justice imposes a
constitutional duty on the decision making authority to apply fair procedures
in the exercise of its statutory powers and functions. If it can be shown that
the duty includes in a particular case a duty to give reasons for its decision
then a failure to fulfil this duty may justify the court in quashing the
decision as being ultra vires.
It
is not the law of this country that procedural fairness requires that in every
case an administrative decision making authority must give reasons for its
decisions. Where a claim is made that a breach of the constitutional duty to
apply fair procedures has occurred by a failure to state reasons for an
administrative decision the Court will be required to consider:
(A) The
nature of the statutory function which the decision makers carry out.
(B) The
statutory framework in which it is to be found and
(C) The
possible detriment the Complainant may suffer arising from the failure to state
reasons. To give an example of a possible detriment; if a statute permitted an
appeal to the Court from the decision of an administrative authority on a point
of law the failure to give reasons for a decision may well amount to a breach
of a duty to apply fair procedures if it could be shown that their absence
rendered ineffectual a statutory right of appeal.
There
may also be circumstances in which:
(A) No
unfairness arose by a failure to give reasons when the decision was made but
(B) The
concept of fair procedures might require that reasons should subsequently be
given in response to a bona fide request for them. Therefore in such cases the
Court would not grant an Order of Certiorari (because the decision itself was
not an ultra vires one) but it would have jurisdiction to grant an Order of
Mandamus directing the decision making authority to carry out its
constitutional duty (which the Court had found existed) to provide reasons when
asked.
Finally
there may be circumstances in which the duty to apply fair procedures may not
oblige a decision making authority to state reasons for its decisions at the
time or after it has made it but which might oblige the authority to explain to
an affected person the material on which the decision was based."
35. The
learned judge then considers, compares and contrasts earlier cases where it was
held that there was a duty to give reasons, including the international fishing
vessels Limited case. At page 24 of his judgment he goes on to say:
"It
seems to me that the issue can largely be determined by considering whether
some detriment is suffered by the Applicant by the failure of the Board to give
reasons for the opinion which it reached because if no detriment is suffered
then no unfairness can be said to exist.
There
is no appeal (either on a point of law or the merits) from the Board's
conclusions following its deliberation on the results of the investigation into
a complaint made under the Act. The Board's reasons are therefore not required
to make effective any statutory right of appeal. What remains to be
considered, therefore, is whether in this case the failure to state a reason in
some way renders ineffectual or otherwise prejudices his right to apply to the
court for an Order of Certiorari or Mandamus. It was held in the International
Fisheries Limited case that the refusal to give reasons deprived the Applicant
in the circumstances of that case of the ability to form a view whether grounds
existed on which the Minister's decision might be quashed, that the Applicant
was therefore placed at a disadvantage and that procedures which produced such
a result where constitutionally unfair. But a person aggrieved by a decision
has no right to obtain reasons for it merely for the purpose of seeing whether
or not the decision maker had erred and I do not think that the judgment in
that case is to be so construed.
In
this case the absence of reasons does not deprive the Court of an ability to
exercise its supervisory jurisdiction. This is clear from the nature of the
statutory function which the Court has jurisdiction to supervise. There are
detailed statutory provisions establishing the procedures to be followed by the
Board and the Court is aware therefore of the manner in which the Board reaches
an opinion and the nature of the material on which the Board's opinion should
be based. In addition the Board in this case has in fact informed the
Applicant in the letter of the 30th November, 1995 of the material on which its
opinion was based. Reasons are not therefore required to enable the Court to
exercise its jurisdiction. In reality they are being sought in this case to
enable the Applicant to see whether or not the Board made an error in the
carrying out its function and there is no duty imposed on administrative
decision makers by the Constitution to comply with the request made for this
purpose."
36. Mr.
Hardiman went on to refer to a number of other cases including
Rajah
-v- College of Surgeons
[1994] 1IR 384 and
Manning
-v- Shackleton
[1994] 1 IR 397 in which the duty to give reasons is surveyed and it has been
held that such a duty does not exist in all cases where administrative
decisions are made. He refers in particular to the case of
Brandon
Book Publishers Limited -v- Radio Telefis Eireann
[1993] ILRM 806 in which the learned Carney J. held that the probable effect of
broadcasting particular material by a public personality was a matter of
judgement within the expertise of and exercisable by Radio Telefis Eireann and
that the exercise of such judgement was not reviewable by the Courts. At page
815 the learned judge states:
"RTE
now accepts that an ordinary member of Sinn Féin may broadcast on a
range of subjects but they say that so far as Mr. Adams is concerned his public
persona is such that he cannot be divorced in the public mind from advancing
the cause of Sinn Féin. As Mr. Colm Molloy put it in evidence ' you
cannot separate Mr. Adams from the position he holds'.
Whether
this is so is a matter of judgment. It is a matter of judgment in relation to
image and the projection of fame. It is a judgment in relation to public
persona. It is a judgment in relation to the probable effect of the
broadcasting of particular material by a particular voice and public
personality and the holder of a particular office.
In
the first instance it seems to me that greater expertise in relation to making
a judgment on these matters must lie with the national broadcasting authority
than the Courts. Secondly, it must be asked whether the exercise of such a
judgment by the broadcasting authority is reviewable by the courts. On the
facts of the case as established on Affidavit with cross-examination of two of
the deponents and taking into account the principles of
The
State (Keegan) -v- Stardust Victims Compensation Tribunal
[1987] ILRM 202, I do not see that it is proper for the Court to interfere"
37. Mr.
Hardiman also refers to the judgment of the learned Mr. Justice Barr in the
case of
Mary
O'Dwyer -v- James Patrick McDonagh and Others
(unreported
14th
October, 1996). In that case the Applicant had applied for a senior post in
the Limerick Regional Technical College. The interview Board for the post
interviewed candidates and the Applicant was not appointed to the post she
desired. The Applicant alleged that certain members of the Board had behaved
in a prejudicial way against her and sought judicial review of the Board's
decision. She claimed that certain matters which apparently militated against
her promotion should have been put to her at the interview so as to enable her
to answer them. At page 15 of his judgment the learned Barr J. dealt with the
matter as follows:
"Mr.
Matthews (for the Applicant) relied on several judicial authorities in support
of his argument including
Rajah
-v- College of Surgeons in Ireland and Others
[1994] 1 ILRM 233 and
O'Reilly
-v- His Honour Judge Cassidy and Others
[1995] 1 ILRM 306. In Rajah (which concerned an procedure which a
student college membership had been discontinued for twice failing annual
examinations) Keane J. held, inter alia, that 'there is an obligation on bodies
which exercise functions of a judicial or quasi judicial nature determining
legal rights and obligations to give reasons for their decisions and this
requirement may even extend to bodies exercising purely administrative
functions'.
Rajah's
case involved the termination of the student's enrolment with a medical school
and the appellant procedure claimed of was quasi judicial in nature involving,
as it did, potential loss of career prospects through ultimate graduation from
a particular professional institution. The selection Board in the matter under
review was not exercising a judicial or quasi judicial function, nor was it
determining legal rights or obligations as in this case as envisaged by Keane
J. Furthermore, it would be singularly inappropriate to require such a body to
give reasons why it favoured the appointment of one particular candidate and
not others. The publication of the reasons why one or more members of a
selection board believed that a candidate was unsuitable for a particular post
would be gratuitously unfair and perhaps offensive to the latter and would
serve no useful purpose."
38. It
is clear from the judgment in the O'Dwyer case that the learned Barr J. makes a
distinction between the exercising of a judicial or quasi judicial function and
the procedure whereby one candidate is selected for promotion from a pool of
applicants.
39. Applying
the law as set out by both Counsel in their submissions to the present case it
seems to me that the question which I must decide is whether the Commission,
either of its own accord or at the request of the applicants, should have given
reasons for its failure to select the applicants' applications for Stage 2 of
the procedure. Apart from this question the procedures carried out by the
Commission are within the framework of the statute and not inherently unfair.
In a process whereby one candidate for a post, as in the O'Dwyer case, or one
applicant for a contract, as in the instant case, is to be selected from among
a number, a process which consists of the studying of all applications by the
members of the selecting body, the making of a short list, and the oral
interviewing of those on the shortlist, is a perfectly normal procedure. One
must presume that the members of the Commission have been appointed by the
Government under Section 3 of the 1988 Act on account of their relevant
expertise, and the matter of selection of sound broadcasting contractors is a
matter for their judgment provided that they adhere to the procedures and
guidelines set out in Sections 5 and 6 of the Act.
40. On
considering the case law which was helpfully set out for me by Counsel on both
sides, it seems to me that as established in McCormack's case the giving of
reasons for a decision made by an administrative body is not in all cases
necessary. The court must distinguish between a situation such as obtained in
the International Fishing Vessels Limited case where, say, the obtaining of a
licence is in theory open to a large number of individual applicants and one
particular applicant is refused, and the situation where there is a competition
between applicants and one particular applicant must be chosen and all others
excluded. In the present case, using the tests set out by the learned
President at page 20 of his judgment in McCormack's case, the nature of the
statutory function of the Commission is the choosing of one applicant from
among a pool of applicants, and the statutory framework is to be found in
Sections 5 and 6 of the 1988 Act. The provisions of the Sections were closely
followed by the Commission in their procedures and in the guidelines which they
issued to applicants. The Applicants have, of course, suffered the detriment
which is bound to be suffered by all unsuccessful applicants, that of having
put a great deal of time, effort and money into the making of an application
which was not successful. This detriment, however, does not arise from the
failure to give reasons, but from the actual rejection of their applications.
This is not a situation where the statute permits an appeal to this Court from
the decision of the Commission and the failure to give reasons would render
ineffectual a statutory right of appeal. The remedy of judicial review does
not provide an alternative form of appeal against administrative decisions as
such. As was said by the learned O'Hanlon J. in deciding a preliminary point in
Rajah
-v- College of Surgeons
[1994] I IR 384 at 388:
"I
think it is important that the High Court should not be turned into a Court of
Appeal from decisions of administrative tribunals generally and that the
tendency to invoke the jurisdiction of the High Court by way of judicial review
proceedings in every case where a party is dissatisfied with the decision of
such tribunal is one that must be resisted."
41. It
seems to me on considering the factual background and the whole conduct of the
proceedings to date that in essence the Applicants seeks to overturn the
decision of the Commission and replace it with a decision in their favour. As
was said by the learned Barron in his judgment of 10th June, 1997 at page 7:
"The
objection of the Applicants to their exclusion is in reality a challenge to the
decision of the Commission. That is not open to them."
42. This
is not a situation where the Commission should be required to give reasons for
its decision and indeed is not a proper situation of the use of the remedy of
Judicial Review.
43. Since
I have held that the giving of reasons is not necessary in the situation under
review it is not necessary for me to decide whether the conversation between
Mr. Tom Nolan and Mr. Michael O'Keeffe, Chief Executive of the IRTC and/or the
alleged telephone conversation between Mr. O'Keeffe and Mr. Richardson
constitute a proper request for reasons for the Commission's decision. The
material on which the Commission based its decision and which was before it at
all material times was simply the various applications for the sound
broadcasting contract. This material had to be considered in the light of the
matters set out in Section 6(2) of the 1988 Act and there is no evidence before
me to suggest that this was not done.
44. For
these reasons I am satisfied that the Applicants are not entitled to the relief
which they claim.
© 1997 Irish High Court