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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Dunnes Stores Ireland Company v. Ryan [2000] IESC 46 (8th February, 2000) URL: http://www.bailii.org/ie/cases/IESC/2000/46.html Cite as: [2000] IESC 46 |
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1. 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.
2. 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 concerned
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
3. 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 set out what were stated to be the reasons for the
Minster appointing the authorised officer.
5. 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:-
6. 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
7. 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 I grounds so as to include that claim.
8. Both
the applicants and the respondents appealed from the order and judgement of the
learned High Court judge. In their notice of appeal, the applicants sought an
order remitting the proceedings to the High Court on the ground that the
learned High Court judge had failed to address a number of matters on which the
applicants had relied in the hearing before him and had also failed to
determine whether s.19 of the 1990 Act was unconstitutional. In the
alternative, they sought an order reversing the judgment and order of the High
Court granting the applicants the various reliefs which they had originally
claimed. In their notice of appeal, the respondents appealed from
9. On
behalf of the applicants, Mr. Hardiman SC submitted that the learned High Court
judge, having rejected the applicants’ claim that the appointment of the
first named respondent was invalid on the various factual grounds addressed
both in the evidence and in the arguments, should then have gone on to
determine, whether, in the light of the constitutional construction which
should be given to s.19 of the 1990 Act, the appointment of the first named
respondent should nonetheless be declared invalid as being
ultra
vires
the
section. He further submitted that, in the event of the learned High Court
judge having found against the applicants on that ground, he should then have
gone on to determine whether s.19 was invalid having regard to the provisions
of the Constitution. In the event, he had determined neither issue and, on that
ground alone, he submitted, the proceedings would have to be remitted to the
High Court, although that was a course which the applicants asked this court to
take with natural reluctance.
10. Mr.
Hardiman further submitted that, apart altogether from that consideration, the
learned High Court judge had failed to address a number of
11. In
particular, he said that the trial judge did not determine whether the
applicants were correct in their allegation that none of the reasons given by
the Minister contained material which, as was contended on her behalf, she was
prohibited from releasing pursuant to s.21 of the 1990 Act. Nor did he resolve
the issue raised by the applicants as to whether the invocation by the Minister
of the concept of “corporate governance” was fatal to the validity
of her decision. Nor had he determined the issue as to whether the appointment
was
ultra
vires
the
section as being disproportionate in its effects and consequences.
12. On
behalf of the respondents, Mr. Frank Clarke SC, while accepting that this court
had no jurisdiction to adjudicate on a constitutional issue which had not been
first determined in the High Court, submitted that the court should nonetheless
proceed to determine the other issues dealt with in the High Court which were
the subject of an appeal to this court. In the event of the applicants’
appeal succeeding and the respondents’ appeal being dismissed, the
constitutional issue would not have to be determined by either the High Court
or this court. He also submitted that, while the judgment of the learned High
Court judge might not have dealt with in detail with all the grounds relied on
by the applicants on the other issues which arose, it was
13. This
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 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. (See
Murphy
v Roche
[1987] IR 106 and
Brady
v. Donegal County Council
[1989] ILRM 282).
14. In
the present case, however, once the High Court had concluded that the
appointment of the first named respondent was
intra
vires
the
1990 Act, the applicants were entitled to have the issue as to the
constitutionality of s.19 of the 1990 Act determined. That did not happen in
the High Court and, as was conceded on behalf of the respondents, it is not now
open to this court to determine an issue of constitutional law which has not
been the subject of an adjudication in the High Court.
15. The
argument advanced on behalf of the respondents - that the necessity for the
constitutional adjudication would be avoided completely in the event of this
court resolving all the other issues in the appeal in favour of the applicants
- hardly carries much conviction when put forward on behalf of parties who are
resisting all the grounds of appeal put forward on behalf of the applicants. If
the course which they are urging on the court were to be adopted - of
dismissing the applicants’ appeal and allowing the respondents’
16. I
would allow the appeal, set aside the order of the High Court in its entirety
and remit the proceedings 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.