THE HIGH COURT
			1999/33 JR  
BETWEEN

DUNNES STORES IRELAND COMPANY
DUNNES STORES (ILAC CENTRE) LIMITED AND
MARGARET HEFFERNAN 
			APPLICANTS
AND
GERARD RYAN AND
THE MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT
			RESPONDENTS
AND
IRELAND AND THE ATTORNEY GENERAL
			NOTICE PARTIES

JUDGMENT of Butler J. delivered on the 29th day of July, 2000.
	
BACKGROUND

	The factual background of this application is fully set forth and described in the judgment of the Chief Justice in these proceedings delivered on the 8th February, 2000.  I respectfully adopt that description and repeat the same hereunder as follows:-

	"On the 22nd July 1998, the second named respondent (hereafter "the Minister") informed the third named applicant/ appellant, who is a director of the first and second named applicants/ appellants, that she had decided to appoint an authorised officer to examine the books and documents of the first and second named applicants/ appellants pursuant to s.19 of the Companies Act 1990 (hereafter "the 1990 Act").  On the same day, Mr. George Maloney, the nominated officer, also wrote to the third named respondent enclosing his warrants of appointment.
	
	These steps were taken by the Minister following the furnishing to the Taoiseach of a Report by Mr. Justice McCracken as the Sole Member of a Tribunal of Inquiry appointed pursuant to resolutions of both Houses of the Oireachtas to inquire into payments made to certain politicians or connected persons or political parties by Dunnes Holding Company or any associated enterprises and/or by Mr. Ben Dunne.  That report concluded that such payments had been to Mr. Michael Lowry TD and two companies with which he was associated and to Mr. Charles Haughey TD by Mr. Ben Dunne, who was at the relevant time the chairman and an executive director of Dunnes Holding Company. Correspondence then ensued between the Minister and officers of the department on the one hand and the third named applicant on the other hand in which the former expressed concern that the report in question had disclosed a number of possible breaches of the Companies Acts, 1963 to 1990, and requested the production of various books and documents relating to the first and second named applicants.  Although some at least of the books and documents of the applicants were made available in response to this request, the correspondence culminated in the letter of 22nd July already referred to in which the Minister said that she was invoking her powers under s.19 of the 1990 Act.  The third named applicant asked the Minister in a letter of the 23rd July to indicate the basis of the appointment of Mr. Maloney and, not being satisfied with the response, initiated proceedings by way of judicial review in the High Court seeking to challenge the validity of the appointment.  Those proceedings were grounded both on the failure of the Minister to give reasons and also on what was claimed to be a conflict of interest which should have precluded Mr. Maloney's appointment as the authorised officer.  The latter ceased to be an issue when Mr. Maloney retired and was replaced as the authorised officer by the first named respondent in these proceedings.

	Those judicial review proceedings were heard by Laffoy J, who, in a reserved judgment, concluded that the Minister was obliged to give reasons for her decision since otherwise the applicants would be entirely frustrated in any challenge they might seek to make to her decision. Although she did not quash the appointment of the authorised officer, Laffoy J did order that the Minister should swear an affidavit setting out in full the reasons for her decision to appoint the authorised officer.  The response to that order was an affidavit of Mr. Paul Appleby, the Principal of the Company Law Administration Section of the Department of Enterprise, Trade and Employment, sworn on the 27th November 1998, the schedule to which sets out what were stated to be the reasons for the Minster appointing the authorised officer.
	
	The schedule included a statement that the circumstances set out in it:-

	'gave substantial cause for concern as to the standard of corporate governance operating in Dunnes Stores Ireland Company...'

	The applicants were dissatisfied with the reasons as thus set out in the schedule to Mr. Appleby's affidavit.  They also claimed that the Minister's department was disseminating information which it was obtaining from the applicants to the media without the consent of the applicants.  In addition, they alleged that the demand made by the first named respondent for the production of documents was unreasonable both in its extent and the time allowed for compliance and that the applicants feared that it would be used as a justification for the criminal prosecution of the applicants and an application for a search warrant pursuant to s.20 of the 1990 Act with attendant unfavourable publicity.  In the result, the present proceedings were instituted beginning with an application to the High Court for leave to apply by way of an application for judicial review, for specified reliefs.  They can be summarised as follows:-

	(1)	Orders of Certiorari quashing the decision of the Minister purporting to appoint an authorised officer to examine the books and records of the first and second named applicants and, specifically, quashing the appointment of the first named respondent for that purpose.
	(2)	An order of prohibition or an injunction preventing or restraining the first named respondent from acting as such an authorised officer;
	(3)	Declarations that the provisions of s.19(5) and (6) of the 1990 Act are invalid having regard to Articles 38.1 and 40.1 of the Constitution;
	(4)	A declaration that s.19(6) of the 1990 Act does not permit the use of statements made by a person in evidence in any criminal prosecution against that person;
	(5)	A declaration that no books or documents or information obtained by the first named respondent may be given or communicated to any person except pursuant to s.21 of the 1990 Act and an injunction restraining the respondents from communicating to any person such material.
	(6)	A declaration that any information, books and/or document furnished to the respondents by the applicants should not be admissible in any subsequent proceedings unless the applicants explicitly stated that it was furnished to the respondents voluntarily.

	The High Court (Budd J) having given the leave sought by the applicants, a statement of opposition was filed on behalf of the respondents.   A notice of motion was then brought on behalf of the applicant seeking the reliefs already set out.  The hearing of the motion before the High Court (Kinlen J) was on both affidavit and oral evidence. There were both written and oral submissions on behalf of the applicants, the respondents and the notice parties.

	In a reserved judgment delivered on the 6th July 1999, the learned High Court judge rejected the claim on behalf of the applicants that the appointment by the Minister of the first named respondent as an authorised officer was invalid.  He also concluded, however, that the first named respondent had acted unreasonably in requiring the books and records specified by him, both having regard to the extent of the requisition and the time afforded for compliance with it, and in requiring the third named applicant and/or other officers of the first named applicant to attend a meeting with him and answer questions put to them by him and that the requisition should be quashed.  Since that relief had not been claimed on behalf of the applicants, he gave them liberty to amend their statement of grounds so as to include that claim."

	The Supreme Court set aside the said Order of the High Court in its entirety and remitted the proceedings herein to the High Court for a determination of the issues in respect of which leave to apply for Judicial Review was granted including, if necessary, the constitutional issue. 

	The evidence adduced at this hearing consisted of the affidavits sworn herein and the exhibits therein referred to and the transcript of evidence of Mr George Maloney and Mr Paul Harnan at the hearing before Mr Justice Kinlen on Thursday the 29th and Friday 30th April, 1999.  Oral and written submissions were made on behalf of the applicants and on behalf of the respondents and notice parties.
	The relevant parts of Section 19 of the Companies Act, 1990 provide as follows:-

	“19.—(1) 	The Minister may, subject to subsection (2), give
		directions to any body being—
		( a )	a company formed and registered under the
			Companies Acts;
		……

		requiring the body, at such time and place as may be specified in the directions, to produce such books or documents as may be so specified, or may at any time, if he thinks there is good reason so to do, authorise any officer of his, on producing (if required so to do) evidence of his authority, to require any such body as aforesaid to produce to him forthwith any books or documents which the officer may specify.

	   (2) 	Directions may be given by the Minister if he is of the opinion that there are circumstances suggesting that—
		( a )	it is necessary to examine the books and documents of the body with a view to determining whether an inspector should be appointed to conduct an investigation of the body under the Companies Acts; or
		( b )	that the affairs of the body are being or have been conducted with intent to defraud—
			(i)   its creditors,
			(ii)  the creditors of any other person, or 
			(iii) its members; or
		( c ) 	or
		( d )	that the affairs of the body are being or have been conducted in a manner which is unfairly prejudicial to some part of its members; or
		( e )	……..; or
		( f )	that any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body are or are likely to be unlawful;……. or
		( g )	that the body was formed for any fraudulent purpose; or
		( h )	that the body was formed for any unlawful purpose.

	(3) 

	(4)	Any power conferred by or by virtue of this section to require a body or    other person to produce books or documents shall include power—
		( a )	if the books or documents are produced—
			(i)	 to take copies of them or extracts from them; and
			(ii) to require that person, or any other person who is a present or past officer of, or is or was at any time employed by, the body in question, to provide an explanation of any of them;
		( b )	if the books or documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

	(5) 	If a requirement to produce books or documents or provide an explanation or make a statement which is imposed by virtue of this section is not complied with, the body or other person on whom the requirement was so imposed shall be guilty of an offence; but where a person is charged with an offence under this subsection in respect of a requirement to produce any books or documents, it shall be a defence to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement.

	(6) 	A statement made by a person in compliance with a requirement imposed by virtue of this section may be used in evidence against him.

	(7) 	Nothing in this section shall prevent the Minister from authorising a person other than an officer of his to exercise the functions which an officer of his may exercise under this section and, where the Minister so authorises, such person shall have the same rights, duties and obligations as if he were such officer.”

	As indicated the Minister has, pursuant to the order of Miss Justice Laffoy, now delivered her reasons for the appointment of an authorised officer.  The same appear in a schedule annexed to the affidavit of Paul Appleby sworn on the 27th November, 1998.  These reasons are dealt with by the applicants under four broad headings, namely:- Inspectorship/Corporate Governance; Revenue Creditor; Concerns of Members; and Illegality.

	The first and principal ground upon which relief is sought by the applicants herein is set forth for at paragraph (a) of the re-amended statement grounding application for judicial review as follows:-

	"The Second Named Respondent has acted unreasonably and/or irrationally; mala fide and/or vexatiously; ultra vires and/or in a manner which is an abuse of her powers, in making the decision to appoint the First Named Respondent;" 

the paragraph goes on to enumerate 11 instances under this heading.
	It has already been acknowledged and it has been decided by Laffoy J. in the previous hearing above referred to that the power conferred on the Minister by s.19 of the 1990 Act is judicially reviewable.  The Applicants, in one of their later submissions, have said that this case depends upon one essential issue, namely:-

	“Do the reasons ultimately furnished by the Minister sustain the decision to appoint an authorised officer?”

I agree and I propose to go through the reasons offered by the Minister as follows:-

A.	Inspectorship/Corporate Governance.
B.	The Revenue as Creditor. 
C.	The Concerns of Members.
D.	Illegality.

A.	Inspectorship/Corporate Governance

	The Minister refers to s.19(2)(a) and says that the circumstances outlined under the following (three) headings give substantial cause for concern as to the standards of Corporate Governance operating in Dunnes Stores Ireland Company and Dunnes Store (Ilac Centre) Limited and suggests that it is necessary to examine the books and documents of the company to determine whether an inspector should be appointed to conduct an investigation of the body under the Companies Acts.  
	Section 19(2) as quoted above, provides, inter alia, that directions may be given by the Minister if she is of the opinion that there are circumstances suggesting that it is necessary to examine the books and documents of the body with a view to determining whether an inspector should be appointed.  I accept that there is no evidence that it is “necessary” to examine the books and documents for that purpose.  

-580B.	The Revenue as Creditor

	Again, as quoted, s.19(2)(b)(ii) of the 1990 Act provides that directions may be given by the Minister if she is of the opinion that there are circumstances suggesting that the affairs of the company are being conducted with intent to defraud the creditors or any other person.  The Minister says that the Revenue Commissioners are such a “person” in this case and refers to the evidence of payments to Mr. Michael Lowry indicating that the same were made to assist Mr. Lowry to evade the tax.
	This reason is simply unsustainable.  The Minister has no right to pass on any information gained because the Revenue is not listed as a “competent authority” under s.21 of the 1990 Act.  Counsel for the Respondent quite properly drew my attention to the fact that the Revenue were added to the list of bodies referred to in s.21 by the Companies (Amendment) Act, 1999.  This amendment, if anything, lends support to the Applicants’ contention.

C.	The Concerns of Members

	The Minister says that there are circumstances suggesting that the affairs of the companies have been conducted with intent to defraud its members or in a manner which is unfairly prejudicial to some part of its members and she cites the report of the McCracken Tribunal saying that the same discloses that a large number of payments were made to various parties from an account in the Marino Branch of the Bank of Ireland; that these are acknowledged to be the property of Dunnes Stores; that at least a portion of the funds in this account was apparently supplied by a series of cheques drawn by Mr. Ben Dunne on the Ulster Bank Account operated by Dunnes Stores Ireland Company in College Green, Dublin.  Further reference is made to the McCracken Tribunal Report and to Conclusion 37 appearing at page 73 thereof which, it is argued, indicates, inter alia, that the large majority of payments considered in its report were made by Mr. Ben Dunne without the knowledge or approval of his co-shareholders.  In these circumstances, it is argued, that it is necessary to examine the books and documents of the companies to determine whether or not the affairs of the companies had been conducted with intent to defraud its members or in a manner which was unfairly prejudicial to some part of its members.  
	The Applicants contend that it is stretching credulity too far to contend that the Minister appointed an authorised officer out of concern for members of the Dunnes family who had, long before the 22nd July, 1998, compromised their differences and gone their separate ways.  I agree.  There is no evidence of complaints by any member of the Company.  

D.	Illegality

	The Minister contends that the illegality which she has detected in the past sustains the appointment under s.19(2)(f).  The said sub-section, as quoted above, provides that directions may be given by the Minister if she is of the opinion that there are circumstances suggesting that “any actual or proposed Act or omission or series of Acts or omissions of the body or on behalf of the body are or are likely to be unlawful”.  Where sub-sections (b) and (d) of the section use the present with the alternative of the past tense, this sub-section (f) clearly and unambiguously uses the present or, in the alternative, the future tense.  I accept, therefore, the contention that the sub-paragraph in question deals only with contemporaneous or ongoing illegality, not illegality of an historical kind.  

	The question of the unreasonableness or irrationality of a decision was considered by Henchy J in The State (Keegan) -v- Stardust Victims Compensation Tribunal, (1986) I.R. 642.  At page 658 of the report Henchy J stated as follows:-

	“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.  If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or discard fundamental reason or common sense in reaching his decision.”

	I am satisfied that the Minister’s decision to appoint an authorised officer, if based on the reasons summarised at paragraphs a, b, c and d above is unreasonable and irrational in that it plainly and unambiguously flies in the face of fundamental reason and common sense and that the same is ultra vires.

	The fact that the Minister gave the reasons only after being ordered to do so by the Court has been strongly commented upon and has been argued to show some form of mala fides.  I am satisfied that there is no evidence of mala fides on the part of the Minister.  I am further satisfied that there is absolutely no evidence that the Minister, or any person in her department, was responsible for unauthorised disclosures or leaks.    

OTHER GROUNDS

	“The Second named Respondent failed to have due regard for the principles of natural and constitutional justice and/or fairness...”

	I do not accept that the Applicants were in any way hampered in their challenge to the Minister’s decision as a result of any of the matters set forth under the foregoing heading and it was not seriously argued that they were.  

	“The First and Second named Respondents have failed to indicate the ambit of their enquiry adequately or at all and/or have purported to undertake an enquiry which is disproportionate and excessive in its ambit and is unsupported by any facts or any adequate facts as would justify an enquiry of such breath and expense.”

	I do not accept the “proportionality” argument.  If it is the case that the authorised officer was properly appointed under s.19, then there is no evidence to suggest that his enquiries are in any way disproportionate or excessive as suggested.  
	
	“The First named Respondent has served what purports to be a demand for documentation which is unreasonable and/or ultra vires and/or vexatious.”

	I do not recall it being argued that the demand in question was, of itself, ultra vires.  As deposed to at paragraphs 7 to 14 of the Affidavit of Gerard Ryan sworn on the 19th February, 1999, it had been ordered by Miss Justice Laffoy that no further action should be taken on foot of his appointment until after the 4th January, 1999.  Between the 5th January, 1999 and the 18th January, 1999 (the date of the said letter) there were communications between Mr. Ryan and the Respondents’ Solicitors wherein Mr. Ryan was seeking to arrange a meeting with officers of Dunnes Stores Ireland Company for the purpose of discussing the request for books and documents.  This request for a meeting seemed perfectly reasonable to me and, when the same could not be arranged, Mr. Ryan wrote on the 18th January referring to the recent history of his request for a meeting and requiring production of documents “not later than 4.00 p.m on Friday, 22nd January, 1999”.  The range of documents requested would appear to be enormous and is described at paragraphs (i) or (iv) on the second page of the said letter.  I am satisfied that the making of such request by an authorised officer would be lawful but for the fact that only four days were given to produce this mass of documents.  On any view the time allowed was unreasonable.  

The Constitutional Issue	

	As pointed out by the Chief Justice in the judgment in this case hereinbefore referred to, the Supreme Court has made it clear on more than one occasion that where the issues between the parties can be determined and finally disposed of by the resolution of an issue of law other than constitutional law, the Court should proceed to determine that other issue first.  If that determination disposes of the case, then the Court should refrain from expressing any view on any constitutional issue that may have been raised and he refers to the case of Murphy -v- Roche, (1987) I.R. 106 and Brady -v- Donegal County Council, (1989), I.L.R.M. 282. 

	By reason, therefore, of my first finding above, namely, that the appointment of the First named Respondent was ultra vires, this Court should not proceed further to consider the constitutional issue that has been raised.