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Bailey v. Flood [2000] IESC 11 (14th April, 2000)
THE
SUPREME COURT
No.
56/00
Denham,
J.
Murphy,
J.
Barron,
J.
BETWEEN
THOMAS
BAILEY, CAROLINE BAILEY,
BOVALE
DEVELOPMENTS LIMITED
APPLICANTS/APPELLANTS
AND
MR.
JUSTICE FEARGUS FLOOD,
THE
SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO
CERTAIN
PLANNING MATTERS AND PAYMENTS
RESPONDENT
Judgment
of the Court delivered by The Hon. Mrs. Justice Denham on the 14th day of
April, 2000
[*2]
This is an appeal by Thomas Bailey, Caroline Bailey and Bovale Developments
Limited, the applicants/appellants, hereinafter referred to as the applicants.
The applicants are appealing against the judgment of the High Court, Morris P.,
delivered the 6th March, 2000, in proceedings in which the applicants claim
relief by way of judicial review of a decision of the respondent.
1. The
applicants sought judicial review of the ruling made on 8th February, 2000 of
the Sole Member of the Tribunal of Inquiry into Certain Planning Matters and
Payments, hereinafter referred to as the respondent.
2. The
said ruling concluded:
"I
believe in the light of my knowledge of the issues and the events which have
occurred to date that it is appropriate that the witnesses in question be
called before the Tribunal to give evidence on oath of the matters which are
relevant to the Tribunal's inquiries. It has been urged upon me that in view of
the private nature of the proposed inquiry touching as it does upon the
expenditure of money and acquisition of assets by the parties that such
inquiries should be conducted in private. The Tribunal of Inquiries Evidence
Act specifically provides for the evidence to be heard in public unless it is
expedient to the public interest that I sit in private. I do not believe that
there are sufficient grounds open to me to conduct the intended examination of
the witnesses in private in the public interest and accordingly I believe that
the examination of the witnesses should proceed."
3. The
factual background to this case is set out in the judgment of the learned
President. There is no conflict between the parties on these facts.
4. Counsel
for the applicants, Mr. John Gordon, S.C., opened the appeal by referring to
two basic grounds, namely,
(a)
That the relevance of the evidence to be given had not been established.
(b)
That the respondent was incorrect in concluding that he must hear the evidence
in public rather than in private.
[*3]
That the applicants have a constitutional right to privacy is beyond debate. It
is equally well established that this is not an absolute right but one which
must in certain circumstances be weighed against or balanced with the
exigencies of the common good. Again, the common good may require that matters,
resolved by democratically elected representatives in the Houses of the
Oireachtas to be of urgent public importance, be inquired into by the tribunal.
It is of the essence of such tribunals that the inquiries be held in public. If
this is not done public disquiet, which lead to the appointment of the
tribunal, could not be allayed. These principles have been established and
reviewed exhaustively in recent years (see
Goodman
International v. Mr. Justice Hamilton
[1992] 2 I.R. 542,
Redmond
v. Mr. Justice Flood
[1999]
1 I.L.R.M. 241;
Lawlor
v. Mr. Justice Flood
(Unreported, Supreme Court, 8th October, 1999);
Murphy
v. Mr. Justice Flood
(Unreported, High Court, Geoghegan J., 30th April, 1999). These principles were
correctly analysed and applied by Mr. Justice Morris in the judgment under
appeal. The concept that public interest includes the interest of the public in
the right of privacy of a person or persons was addressed by the President. He
stated at page 30 of the transcript of his judgment:
"...
I am prepared to accept, without deciding, that the protection of
constitutional rights can constitute a public interest that might justify the
exclusion of the public from the proceedings of a tribunal of inquiry."
5. The
novel feature of the present case was the argument that the evidence of the
applicants should be heard by the tribunal in private in the first instance
and, if it was then established or emerged that the evidence so given was
relevant or material, the hearing could be repeated in public. Assuming,
without deciding, that such a procedure was permissible, a decision as to
whether that course should be adopted was one which fell to be made by the [*4]
tribunal
itself. That decision must conform to the standard of reasonableness laid down
by this court in
The
State (Keegan) v. Stardust Victims Compensation Tribunal
[1986]
I.R. 642 and
O'Keefe
v. An Bord Pleanala
[1993] 1 I.R. 39. No doubt any determination of reasonableness would have
regard to the subject matter and consequences of the decision as was so clearly
illustrated by the decision of the Court of Appeal in England in
R.
v. Lord Saville
[1999] 4 ALL ER 860. Those principles having been examined in full by the
learned President, he stated at page 27 of the transcript of the judgment:
"The
legislature has entrusted a broad measure of discretion to such tribunals,
including the discretion to decide how the inquiry will proceed and what
evidence will be admitted, and it is no part of the duty of this Court to
whittle down that discretion, with the inevitable deleterious effects that
would have on the effective discharge of the important public tasks with which
tribunals of inquiry are burdened."
6. The
learned President stated and applied the law correctly and in so doing disposed
of the issues which arise. The Court will therefore dismiss the appeal.
© 2000 Irish Supreme Court
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