The Supreme Court dismissed an appeal by Owen O’Callaghan, John Deane and two companies seeking to prevent the Tribunal of Inquiry into Certain Planning Matters and Payments from continuing its investigation or making findings about matters affecting them. The Court affirmed the High Court order. No final findings had been made by the Tribunal in the matters at issue.
The appellants argued that they had been treated unfairly compared with Tom Gilmartin, whose allegations against them they disputed, and that the Tribunal’s conduct created a reasonable apprehension of bias. Their complaints included the Tribunal’s earlier refusal to disclose some of Gilmartin’s prior statements and other material, and the extent of contact between Gilmartin and Tribunal counsel.
That earlier non-disclosure decision had already been quashed in separate proceedings. The Supreme Court records that the Tribunal accepted it had been wrong to withhold material later ordered disclosed. The appellants were entitled to use the disclosed material to cross-examine Gilmartin. The appeal in this case concerned whether the Tribunal could nevertheless continue its inquiry.
Justice Fennelly concluded that the High Court had reasonably rejected the claim of unequal treatment. Gilmartin was making allegations the Tribunal considered relevant to its terms of reference, and the Tribunal had to investigate them. O’Callaghan was not making allegations. The Court held that the Tribunal’s investigative work and contacts with Gilmartin did not establish that it had favoured him in a way that made a fair hearing impossible.
On bias, the Court applied an objective test: whether a reasonable, fair-minded observer with the relevant facts would apprehend a risk that the decision-maker would not act fairly and impartially. It held that bias could not be inferred simply from a series of errors within the decision-making process; the claim required something external to that process or statements showing prejudgment, hostility or dislike.
The Court declined to examine the prior statements in detail to decide whether they undermined Gilmartin’s credibility. It said that would involve the Court in assessing evidence that remained for the Tribunal to consider. The Tribunal had not expressly decided that Gilmartin was credible, and the Court found no basis to infer that it had settled the credibility issue in advance. It also criticised as improper a Tribunal solicitor’s statement suggesting the appellants’ solicitors intended to create a false impression, but held that, in context, it did not establish objective bias.
The appeal was dismissed on both unfairness and bias grounds, and the High Court order was affirmed. The ruling did not decide the truth of Gilmartin’s allegations or determine the appellants’ credibility; those matters remained for the Tribunal’s process.