Supreme Court of Ireland Decisions

Judgment Title: Fitzwilton Limited and Goulding Limited and Rennicks Sign Manufacturing -v- Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys Members of the Tribunal of Inquiry into certain Planning Matters and Payments

Neutral Citation: [2007] IESC 27

Supreme Court Record Number: 37/07

High Court Record Number: 2005 1018 JR

Date of Delivery: 04 July 2007

Court: Supreme Court

THE SUPREME COURT

Denham J.
Geoghegan J.
Fennelly J.
Kearns J.
Butler J.


Between/


Fitzwilton Limited and Goulding Limited
and Rennicks Sign Manufacturing

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.

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 IR 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.