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Cite as: [1998] IESC 16

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Bailey v. Flood [1998] IESC 16 (28th July, 1998)

THE SUPREME COURT

HAMILTON CJ.

DENHAM J.

BARRINGTON J.

KEANE J.

MURPHY J.

118/98

BETWEEN:

MICHAEL BAILEY

BOVALE DEVELOPMENTS LIMITED

TERESA BAILEY

Appellants

and

MR. JUSTICE FERGUS FLOOD

THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY

INTO CERTAIN PLANNING MATTERS

Respondent

and

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

Notice Party

JUDGMENT OF THE COURT delivered on the 28th day of July 1998 by Hamilton C.J. [Nem. Diss.]

1. This is an appeal brought by the above-named Appellants, Michael and Teresa Bailey, who are husband and wife and who reside at Killamonan House,

2. The Ward in the County of Dublin, and Bovale Developments Ltd., having its

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registered offices at 59, Fitzwilliam Square in the City of Dublin (hereinafter collectively described as the Appellants) against the order made by Geoghegan J. on the 15th day of May, 1998 whereby the Appellants claim by way of judicial review for orders of certiorari quashing certain orders made by the Respondent herein on the 26th day of February, 1998 and directed to The Governor and Company of the Bank of Ireland (hereinafter referred to as the Notice Party) was refused.

3. The said orders were made by the Respondent, who had by order made by the Minister for the Environment and Local Government on the 4th day of November, 1997 been nominated to be sole member of the Tribunal appointed by the said Minister by the said order to enquire urgently into the definite matters of urgent public importance which had been set out at Parts A and B of the Resolutions passed by Dáil Éireann and Seanad Éireann on the 7th and 8 ^th days of October, 1997.

4. The said order had provided that:

“The Tribunals of Inquiry (Evidence) Act, 1921 (as adapted by or under subsequent enactments) and the Tribunals of Inquiry (Evidence) Act, 1979, shall apply to the Tribunal”

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5. The relevant sections of such Acts provide that the Tribunal shall have all such powers, rights and privileges as are vested in the High Court in respect of the compelling of the production of documents (vide Section 1(2)(b) of the 1921 Act) and in respect of the making of such orders as it considers necessary for the purposes of its functions. (Section 4 of the 1979 Act)

6. Though the aforesaid sections have been held by this Court not to be invalid having regard to the provisions of the Constitution, the powers thereby vested in the Respondent must be construed and exercised within the constitutional framework and in accordance with fair procedures.

7. In purported pursuance of the powers conferred on him by the Tribunals of Inquiry (Evidence) Acts 1921, 1979 and 1997, the Respondent did on the 26th day of February, 1998 make two separate orders of discovery ordering the Notice Party to make discovery on oath of all documents relating to any account held in the name or on behalf of Bovale Developments Ltd. and Michael Bailey and any account held in the name or on behalf of any company connected with the said Bovale Developments Ltd. and Michael Bailey, including (but not confined to) all statements of account, mandates, ledger books, agreements, correspondence, security documents, paid and returned

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cheques and bank drafts within the power, possession or procurement of the Notice Party, in the

(i) Bank of Ireland branch at the Montrose Centre, Stillorgan Road, Dublin; and

(ii) Bank of Ireland branch at Lower Baggot Street in the City of Dublin.

8. On the same day, the Respondent made two orders, ordering the Notice Party to produce to the Solicitor acting for the Respondent copies of all documents within their power, possession or procurement relating to the accounts referred to in the aforesaid Orders for Discovery and held in (i) the Bank of Ireland Branch at the Montrose Centre, and (ii) the Bank of Ireland Branch at Lower Baggot Street, Dublin.

9. On the 16th day of March, 1998 the Appellants applied to the High Court (Barr J.) and were granted leave to apply by way of an application for judicial review for, inter alia, orders of certiorari in respect of the aforesaid orders on the grounds that in the making thereof the Respondent failed to act in accordance with constitutional justice and fair procedures.

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10. Various other reliefs were sought by way of declarations, prohibitions and injunctions on the foregoing and other grounds but the Court does not consider it necessary to refer to or deal with such reliefs or the grounds set forth in support thereof in the Statement of Grounds filed on behalf of the Appellants.

11. The Appellants application for Judicial Review was heard in the High Court (Geoghegan J.) on the 2 1st, 22nd, 23rd and 24th days of April 1998 and judgment thereon was delivered by the learned trial judge on the 15th day of May, 1998 and by order dated the 15th day of May, 1998 the Appellants claim for relief was refused.

12. The Appellants have appealed to this Court against the terms of the said judgment and order.

13. Though quite a number of issues were raised by the Appellants during the course of the hearing in the High Court and dealt with by the learned trial judge in the course of his judgment which issues are referred to in the written submissions filed in this Court on behalf of the Appellants and the Respondent, this Court is now concerned with only one such issue.

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14. In the course of his oral submission to this Court, Counsel for the Appellants informed the Court that he was relying on only one ground in support of his submission that their appeal should be allowed and the aforesaid orders quashed viz, that in the making of the said orders the Respondent was obliged to apply the principles of constitutional justice and, in particular fair procedures and that he failed to do so in

(a) not informing the Notice Party and the Appellants of its intention to make such orders and the nature thereot

(b) not affording the Notice Party and the Appellants whose rights were likely to be encroached upon the opportunity to make such representations as they might consider fit, including representations with regard to the necessity for such orders and with regard to the nature and extent thereot and

15. In the course of its judgment in Haughey and Others .v. Mr. Justice Moriarty and Others (delivered on the 28th day of July 1998), when dealing with similar orders of discovery made by the Tribunal in that case, this Court stated as follows:

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‘in the making of such orders, the Tribunal had in relation to their making all such powers, rights and privileges as are vested in the High Court or a]udge of that Court in respect of the making of orders.

Fair procedures require that before making such orders, particularly orders of the nature of the orders made in this case, the person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to make such order, should have been afforded the opportunity prior to the making of such order, of making representations with regard thereto. Such representations could conceivably involve the submission to the Tribunal that the said orders were not necessary for the purpose of the functions ojthe Tribunal, that they were too wide and extensive having regard to the terms of reference of the Tribunal and any other matters.”

16. The Court, in the Haughey case, was satisfied that the said orders were made in contravention of the requirements of constitutional justice and that fair procedures were not adopted by the Tribunal in the making of the said orders and that such failure was not remedied by the insertion in such orders of the

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provision that a person to whom the order was directed or any person affected thereby had the right to apply to the Tribunal to vary or discharge that order.

17. As stated therein:

“There may be exceptional circumstances, such as a legitimate fear of destruction of documents zfprior notice was given, where the requirements of fair procedures in this regard may be dispersed with.”

18. No such circumstances exist in this case.

19. There is nothing in the circumstances of the instant case which would justify this Court coming to a different conclusion on the appeal herein. It has come to this conclusion despite the excellence and thoroughness of the submissions made on behalf of the Respondent both in writing and orally to this Court.

20. The orders for discovery and the Orders compelling the production of documents made on the 26th day of February 1998 must be quashed and the Court will so declare.

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21. The quashing by the Court of the said orders does not preclude the Respondent from making similar orders in the future should it consider that the making of such orders is necessary for the purposes of its functions, provided that in the making thereof he has regard to the principles of constitutional justice and applies fair procedures.