The Supreme Court allowed an appeal by Fitzwilton Limited, Goulding Limited and Rennicks Sign Manufacturing over the Tribunal of Inquiry into Certain Planning Matters and Payments’ handling of the Fitzwilton matter. In a judgment delivered on 4 July 2007, Mr Justice Kearns agreed with the form of order proposed by Ms Justice Denham. The judgment does not set out the terms of that order.
The appeal concerned whether a document signed by the Tribunal’s members on 28 April 2005 complied with amended terms of reference approved by the Houses of the Oireachtas and made by ministerial instrument in December 2004. The amended terms required the Tribunal, by 1 May 2005, to consider and decide which additional matters under preliminary investigation would proceed to a public hearing, record that decision in writing and notify affected parties.
The parties did not challenge the High Court’s findings that those requirements were mandatory and that compliance was a prerequisite to the Tribunal’s jurisdiction to hold a public hearing on a designated matter. The Tribunal respondents argued that the April document met the requirements, or alternatively that substantial compliance was enough.
The document was headed as a list of additional matters under paragraph J(2) and named “Fitzwilton-MMDS-Payment to Ray Burke by Rennicks”. It also said the Tribunal “may decide” to proceed to a public hearing on issues within a listed matter, and that decisions on whether listed matters should continue in private inquiry or proceed to public inquiry remained subject to review.
Mr Justice Kearns said the document did not show that the Tribunal had decided to hold public hearings on the listed matter. Its wording indicated only that the Tribunal had considered the matter and might decide later whether to proceed publicly. He rejected the respondents’ argument that the discretion in paragraph J(6) could be read together with paragraph J(2) to cure that omission: J(6) allowed later changes to a decision already made under J(2), but did not remove the initial duty to decide by the required date.
The judge also rejected substantial compliance. Because the written record did not show the decision required by the terms of reference, the shortcoming went to the Tribunal’s jurisdiction rather than being a minor technical defect. He therefore allowed the appeal and agreed with Ms Justice Denham’s proposed order. The source excerpt does not provide the precise wording or practical effect of that order.