Judgment: 2006-10-10 · Court archive

High Court rejects bid to stop planning tribunal inquiry

The court dismissed a judicial review application alleging unfair treatment and apparent bias, finding that the applicants could resume cross-examining a key witness and that the tribunal’s inquiry should continue.

The High Court · [2006] IEHC 311

Who, what, where, when and why

Who
  • Owen O'Callaghan
  • John Deane Riga Limited
  • Barkhill Limited (Applicant)
  • Tom Gilmartin
What

The court dismissed a judicial review application alleging unfair treatment and apparent bias, finding that the applicants could resume cross-examining a key witness and that the tribunal’s inquiry should continue.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The judge also addressed complaints about Gilmartin’s contact with tribunal lawyers, assistance with an affidavit, and immunity from prosecution. He found that the disclosed material did not establish that Gilmartin had received special or privileged treatment. The immunity decision was made by the Director of Public Prosecutions, who was not a party to the proceedings. The judge said the inquiry’s evidence remained incomplete and it would be premature to prevent the tribunal from hearing it.

The High Court dismissed a judicial review application by Owen O’Callaghan, John Deane Riga Limited and Barkhill Limited seeking to stop the Tribunal of Inquiry into Certain Planning Matters and Payments from investigating or making findings on matters affecting them.

The applicants argued that documents disclosed after earlier court proceedings showed they had been treated unfairly compared with Tom Gilmartin, who had made allegations against them. They also claimed the tribunal’s conduct created a reasonable apprehension of bias. The application challenged the tribunal’s refusal to desist from further inquiry.

The court said the Supreme Court’s 2005 decision in earlier proceedings, JR 324, had required disclosure of material so the applicants could exercise their fair-procedure rights, including effective cross-examination. The High Court judge said the tribunal had adapted its procedures in response and intended to recall Gilmartin so the applicants could question him using the disclosed documents. The court considered that any inconsistencies or allegedly false statements could be explored in that process. It did not determine the truth of those allegations.

The judge also addressed complaints about Gilmartin’s contact with tribunal lawyers, assistance with an affidavit, and immunity from prosecution. He found that the disclosed material did not establish that Gilmartin had received special or privileged treatment. The immunity decision was made by the Director of Public Prosecutions, who was not a party to the proceedings. The judge said the inquiry’s evidence remained incomplete and it would be premature to prevent the tribunal from hearing it.

On apparent bias, the court applied an objective test and found no factor supporting a reasonable view that the tribunal wished to vindicate Gilmartin at the applicants’ expense. It considered a tribunal member’s remark about O’Callaghan knowing another person and a strongly worded 2005 letter from the tribunal, but found neither established apparent bias or a concluded view on the outstanding factual issues.

The court also held that, even if bias had been established, the doctrine of necessity would apply given the partly heard inquiry and the interests of other people involved. The application for judicial review therefore failed. The judgment did not decide the underlying allegations concerning the applicants; those remained for the tribunal to consider after hearing evidence in public.

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