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Murphy v. Flood [2000] IESC 45 (26th January, 2000)
THE
SUPREME COURT
JUDICIAL
REVIEW
Hamilton
C.J.
Denham
J.
Barrington
J.
Keane
J.
Barron
J.
103/99
BETWEEN:
JOSEPH
MURPHY SENIOR
Applicant
and
THE
HONORABLE MR. JUSTICE FEARGUS FLOOD SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO
CERTAIN PLANNING MATTERS AND PAYMENTS
Respondent
and
JAMES
GOGARTY
Notice
Party
Judgment
of the Court delivered on the 26th day of January 2000 by Hamilton C.J.
1. The
Respondent named in the above entitled proceedings is the Honourable Mr.
Justice Feargus Flood who is and was at all relevant times the
________________________
page break ________________________
(2)
sole
member of the Tribunal of Inquiry into certain planning matters and payments
having been appointed thereto by instrument of the Minister for the Environment
and Local Government dated the 4th day of November 1997 as amended by further
Instrument dated 15th day of July 1998 and who will hereafter be referred to as
the Sole Member.
2. These
instruments were made in pursuance of resolutions passed by Dáil
Éireann on the 7th day of October, 1997 and by Seanad Éireann, on
the 8th day of October, 1997 and by further resolutions passed in Dáil
Éireann on the 1st day of July, 1998 and by Seanad Éireann on the
2nd day of July, 1998, extending the terms of reference of the Tribunal.
3. In
the course of his conduct of the said inquiry, the Respondent herein did rule
that an affidavit of Liam Conroy, deceased sworn on the 20th day of March, 1989
be admitted into evidence before the said Sole Member.
4. Subsequent
to the said ruling, Counsel on behalf of the Applicant herein sought an order
pursuant to Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1991 to
the effect that the Tribunal ought not allow the public to be present when any
witness to the Tribunal gives evidence in relation to the contents of
________________________
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(3)
the
said affidavit of Liam Conroy sworn on the 20th day of March 1989, in certain
proceedings in the Isle of Man and filed in those proceedings. In his said
ruling, the Sole Member stated that:-
“This
affidavit has been ruled by the Tribunal to be relevant and admissible in
evidence in relation to certain matters under inquiry before the Tribunal.”
5. On
the 28th day of April 1999, Counsel for the Applicant, one Joseph Murphy,
Senior, of Courtil Rozel, Mount Durand, St. Peter Port, Guernsey (hereinafter
referred to as the Applicant) applied ex-parte before the High Court,
(Geoghegan J.) for leave to apply by way of application for judicial review for
the following reliefs:-
(a) An
order of certiorari quashing the decision of the Respondent of the 19th day of
March, 1999 to admit into evidence before the proceedings of the Tribunal of
Inquiry into certain planning matters an affidavit of Liam Conroy, deceased,
sworn on the 20th day of March, 1989;
(b) A
declaration that the admission of evidence of the contents of the aforesaid
affidavit into the said proceedings was in breach of the rights of the
Applicant herein to fair proceedings and constitutional justice;
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page break ________________________
(4)
(c) A
declaration that in admitting the aforesaid affidavit into evidence in the said
proceedings the Respondent erred in law and in fact and thereby exceeded his
jurisdiction;
(d) Further
or in the alternative an order of certiorari quashing the decision of the
Respondent of the 27th day of March, 1999 not refusing to allow the public to
be present when any witness of the Tribunal gives evidence in relation to the
aforesaid affidavit of Liam Conroy, deceased, sworn on the 20th day of March,
1989;
(e) A
declaration that in determining not to exercise the power conferred by Section
2(a) of the Tribunals of Inquiry (Evidence) Act, 1921 to exclude the public
when any witness to the Tribunal gives evidence in relation to the contents of
the aforesaid affidavit of Liam Conroy, deceased, sworn on the 20th day of
March, 1989, the Respondent erred in law and in fact, exceeded his jurisdiction
and acted in breach of the rights of the Applicant to fair procedures and
constitutional justice; on the grounds set out at paragraph (E) in the
statement dated the 28th day of April, 1999 signed by the solicitors for the
Applicant.
6. By
his judgment delivered on the 30th day of April, 1999, the learned trial judge
refused to grant to the Applicant leave to apply by way of application for
judicial review for the aforesaid reliefs.
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page break ________________________
(5)
7. On
the 4th day of June, 1999 this Court dismissed the Applicant’s appeal
against the said order of the 30th day of April, 1999 and stated that it would
give its reasons at a later date.
8. The
application made to the High Court related to two issues, firstly the issue as
to the decision of the Sole Member to admit into evidence the aforesaid
affidavit of Liam Conroy, deceased, and secondly, the decision of the Sole
Member not to hear evidence in regard thereto in private.
9. The
learned trial judge dealt with these issues as follows:
“It
is perfectly clear from the Grounding Affidavit of Mr. Michael Fitzsimons,
Solicitor, and the relevant portions of transcript before me that the primary
if not the sole purpose for which Counsel for the proposed Notice Party, James
Gogarty, applied to the Tribunal to have the affidavit admitted was because the
said James Gogarty in his evidence alleged that after the Applicant had paid
over money to a member of the Dáil and of the relevant planning
authority with a view to obtaining a developer’s planning permission, the
Applicant subsequently sold the relevant land on an agricultural value basis.
According to the said James Gogarty in his evidence this apparent inconsistent
conduct on the
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(6)
part
of the Applicant was caused by panic arising out of his sight of the
controversial affidavit of Liam Conroy, now deceased All of this is in dispute.
But Counsel for the Applicant has consistently argued both before the Tribunal
and before this Court that there is no need for the contents of the affidavit
to be disclosed to the Tribunal since the matters in the affidavit do not
directly relate to the terms of reference but that it would be sufficient for
Mr. Gogarty’s purposes f the existence and date of the Affidavit was
disclosed and if it was conceded that it contained serious allegations against
the Applicant. The Respondent has taken the view that the contents of the
affidavit must be disclosed to enable the Tribunal to make a proper
determination of the issues in dispute. It may well be that provided no
reasonable argument could be made to the effect that such a ruling was wholly
unreasonable, this Court should not grant leave for judicial review. But I do
not have to decide that point because I am in entire agreement with the Sole
Member of the Tribunal that once it was established that this affidavit might
have been a catalyst in the events that transpired, it would not be sufficient
for the Tribunal merely to be informed as to the existence and date of the
Affidavit and that serious allegations are made in it. It is my view that
________________________
page break ________________________
(7)
beyond
argument the Tribunal would have to see the affidavit. On that basis there is,
in my opinion, no arguable case for an Order of Certiorari quashing the
decision to admit the affidavit and I must refuse leave for Judicial Review
proceedings seeking this remedy and the ancillary declaratory remedies.
I
want to make it clear that in making this decision I am expressing no views as
to whether the contents of the affidavit of Liam Conroy, deceased, can form
part of the evidence at the Tribunal, having regard to the fact that Liam
Conroy cannot now be cross-examined. It is not clear to me, indeed, from the
evidence before me that any submission has been made by Mr. Callanan, Counsel
for Mr. Gogarty, to the effect that the contents of the affidavit of Mr. Conroy
should form part of the evidence before the Tribunal. As I understand it, the
reason that he wanted the Affidavit put in evidence including its contents was
to prove not the facts in the affidavit but rather the context in which Mr.
Murphy, the Applicant, changed direction under panic. I accept that the two
Rulings of the Respondent and particularly the Ruling relating to the
application to have the evidence heard in private might seem to suggest that
the affidavit could be used as evidence at the Tribunal as distinct from being
used for the purposes of
________________________
page break ________________________
(8)
context
and credibility but I think that for the purposes of this application I should
merely consider whether there is an arguable case that the contents of the
affidavit ought not as a matter of law be disclosed at the Tribunal for any
purposes and I have already indicated that I cannot accept such a proposition.
The question of the use to which the contents of the Affidavit can be put for
the purposes of the ultimate findings of the Tribunal can be argued out in due
course before the Sole Member. I am not concerned with that at this stage.
With
regard to the second or alternative judicial review sought, I am satisfied that
leave should be refused in this instance also. Before Mr. Justice Flood ruled
that he would not refuse to allow the public to be present when any witnesses
of the Tribunal gave evidence in relation to the affidavit of Liam Conroy,
deceased, the relevant paragraphs in the affidavit which are causing concern to
the Applicant had been opened to him at a private hearing. He is therefore
fully aware of the nature of the allegations contained in the affidavit and
nevertheless he has decided that the hearing should be in public. I think that
that is entirely a matter of discretion for the Sole Member and that this Court
would not be entitled to interfere with it. It would have been
________________________
page break ________________________
(9)
a
different matter if those relevant paragraphs had not been disclosed to the
Sole Member before he made his Ruling. If that had been the case, I would have
had some doubts and indeed, on balance, I would have probably granted leave for
judicial review of the ruling that the evidence concerning the affidavit should
be heard in public but given that Mr. Justice Flood made his Ruling knowing the
contents of those paragraphs and accepting as I do that it was a matter of
discretion for him and that nobody, in my view, could say that the Ruling was
wholly unreasonable, it would not be appropriate to give leave to bring
Judicial Review proceedings in respect of that Ruling.
I
therefore refuse all the reliefs sought.”
10. From
this judgment and the Order made in pursuance thereof the Applicant has
appealed to this Court.
11. The
two decisions or rulings, sought to be impugned herein, were made by the Sole
Member in the course of his Inquiry into Certain Planning Matters and Payments,
established by the Minister for the Environment and Local government pursuant
to resolutions passed by Dáil Éireann and by Seanad Éireann.
________________________
page break ________________________
(10)
12. These
rulings related to the admissibility in evidence of the affidavit sworn by Liam
Conroy, deceased, and the decision of the Sole Member that evidence in regard
thereto would be given in public.
13. The
decisions or rulings so made can only be interfered with by the Court if they
were
(a) made
in breach of the Applicant’s constitutional rights, and/or
(b) either
unreasonable or irrational or flew in the face of fundamental reason and
common-sense.
14. Dealing
with the aforesaid affidavit, Mr. Michael Fitzsimons, solicitor for the
Applicant averred in his affidavit sworn on the 28th day of April, 1999 at
paragraph
5
thereof:-
“Mr.
Liam Conroy who is the deponent of the affidavit the subject matter of these
proceedings became a non-executive director of Joseph Murphy Structural
Engineers Limited in 1982. In 1983 he became Chief Executive of all the Murphy
Companies in both Ireland and the United Kingdom. The bulk of the commercial
activity undertaken by the Murphy Group was conducted in the United Kingdom.
Mr. Conroy’s position therefore was
________________________
page break ________________________
(11)
significantly
more important one than that of Mr. Gogarty whose activities and
responsibilities were confined to Ireland. In 1987 the relationship between the
Applicant herein and Mr. Conroy deteriorated significantly and by 1988 the
Applicant had lost any vestige of trust in Mr. Conroy. In June 1988 Mr. Conroy
was removed from his various positions within the Murphy Group of companies
both in the United Kingdom and in Ireland and just as in the case of Mr.
Gogarty this prompted considerable litigation between the parties. One such set
of proceedings involved an application by Mr. Murphy in the Isle of Man seeking
certain declarations in relation to a trust of which Mr. Conroy and members of
his family were beneficiaries. Certain Murphy settlements had been created in
the Isle of Man. The trustees were two companies known as Armoy and Ashdale
Limited both of which were Manx companies. Proceedings were commenced in the
Isle of Man for recovery of assets and for declarations that a sub-trust known
as the Lithe Trust created by Mr. Conroy was invalid. Initially the basis of
the claim was that the sub-trust had been created by the trustees without any
authority, without any reference to the discretionary beneficiaries of the
original trusts and in collusion with Mr. Conroy as a fraud (in the legal
sense) on
________________________
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(12)
each
of the said trusts. The affidavit which is the subject matter of these
proceedings was sworn by Mr. Conroy in these proceedings in the Isle of Man.
Mr. Conroy is now deceased having died in or around the month of July
1998.”
15. In
the course of his ruling on the 27th day of April, 1999, the Sole Member
stated, in relation to the allegations against the Applicant contained in the
affidavit, that:-
“It
is undoubtedly true that they are not directly referable to the terms of
reference but there may be circumstances where they could be of probative value
and corroborative of other evidence tendered to the Tribunal by Mr.
Gogarty.”
16. It
is submitted on behalf of the Applicant that the said affidavit, containing as
it does serious and damaging allegations against the Applicant herein are not
relevant to the terms of reference of the inquiry and should not have been
admitted in evidence by the Sole Member.
17. It
is further submitted that the contents of the affidavit are hearsay and that
the Applicant has been deprived of his right to cross-examine the deponent of
the said affidavit in respect of the allegations contained therein.
________________________
page break ________________________
(13)
18. In
the course of his ruling made on the 27th day of April 1999, the Sole Member
stated:-
“Undoubtedly,
the statements made in the affidavit by Mr. Conroy cannot be the subject matter
of a personal cross-examination of the deponent. Mr. Murphy, however, will have
full access to the Tribunal to give his version on oath in relation to the said
allegations. It is the duty of the Tribunal to fairly assess (sic.) Mr. Murphy
Senior’s evidence and to apportion to it the probative value to which he,
as a witness, is fairly and properly entitled.”
19. It
is not clear what probative value, if any, will be attached by the Tribunal to
the contents of the said affidavit.
20. The
Sole Member in the course of his ruling envisaged circumstances where the
contents of the said affidavit could be of probative value and corroborative of
other evidence tendered to the Tribunal by Mr. Gogarty.
21. The
admissibility of evidence is purely a matter for the Sole Member and his
decision to admit the said evidence cannot be said to have been made by him in
breach of the Applicant’s constitutional rights or to be so unreasonable
or irrational as to justify this Court in interfering therewith.
________________________
page break ________________________
(14)
22. With
regard to the second issue namely the decision of the Sole Member not to
conduct a hearing in private with regard to the evidence in relation to the
said affidavit, Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921
provides that:-
“A
tribunal to which this Act is so applied as aforesaid -
(a) shall
not refuse to allow the public or any portion of the public to be present at
any proceedings of the tribunal unless in the opinion of the tribunal it is in
the public interest expedient so to do for reasons connected with the subject
matter of the inquiry or the nature of the evidence to be given.
As
the Sole Member correctly pointed out in the course of his ruling on this
issue, it is to be noted that sub-section (a) of the said Section is couched in
the negative and that a private session is an exception to the general mode of
procedure contemplated for hearings before the Tribunal.
The
Tribunal must be conducted in public and it may not refuse to allow the public
to be present
“unless
in the opinion of the Tribunal it is in the public
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(15)
interest
expedient so to do”.
23. It
is of the essence of such Inquiries that they be held in public for the purpose
of allaying the public disquiet that led to their appointment.
24. It
is purely a matter for the Tribunal to decide whether it be in the public
interest expedient to refuse to allow the public or any portion of the public
to be present at any of the proceedings of the Tribunal.
25. As
there is no evidence that the decision of the Sole Member not to exclude the
public from the hearing of evidence with regard to the contents of the
aforesaid affidavit was in any way unreasonable or irrational, the Court is not
entitled to interfere with the ruling made by the Sole Member thereof as there
was no breach of the Applicant’s constitutional rights in regard thereto.
26. For
these reasons the Court dismissed the Applicant’s appeal against the
order of the High Court.
© 2000 Irish Supreme Court
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