A Supreme Court judge yesterday said a Garda Commissioner would "drool over" the powers given to the chairman of the planning tribunal.
Mr Justice Murphy made the comment during the hearing of an appeal by Bovale Developments Ltd, Fitzwilliam Square, Dublin, its director Mr Michael Bailey and his wife Teresa, of Killamonan House, The Ward, Co Dublin, against a High Court refusal to quash orders directing the production of details of their bank accounts to the tribunal chairman, Mr Justice Flood.
None of the documents has so far been given to the tribunal and it has undertaken not to take any steps on foot of the discovery orders until the appeal is dealt with by the Supreme Court. The appeal concluded yesterday and judgment was reserved.
In judicial review proceedings before Mr Justice Geoghegan in the High Court last May, Bovale and the Baileys had sought a number of reliefs, including the quashing of orders made by the tribunal chairman directing the Bank of Ireland to hand over details of their accounts.
The tribunal chairman's orders of production and discovery in respect of the accounts were made on February 26th and March 12th last. But the applicants secured a temporary High Court injunction restraining the bank from complying with the orders.
In his reserved judgment, Mr Justice Geoghegan dismissed the judicial review application but continued the injunction to facilitate the taking of an appeal to the Supreme Court.
The judge said he was concerned the applicants might have at least arguable grounds for seeking a variation of the discovery orders against them. He was pleased the tribunal was willing to entertain such an application provided it was confined to factual matters. Opening the Supreme Court appeal yesterday, Mr Colm Allen SC, with Mr Eamon Leahy SC, for Bovale and the Baileys, said what was involved was a net issue and only limited relief was sought. The net question was whether a tribunal was entitled, in the absence of special circumstances, to make discovery and production orders against a party's bank accounts without giving prior notice to the person concerned of the intention to make such orders. It was his case a tribunal did not have such powers, counsel said. The ordinary rules of natural and constitutional justice must apply. The tribunal was required to adhere to fair procedures although counsel for the tribunal had argued, in the High Court, that fair procedures did not apply at the investigative stage and whatever was done by the chairman at that stage was not reviewable unless done for an improper motive.
Mr Allen conceded there were special circumstances where it might not be desirable to give prior notice, such as where there was an apprehension that notice would lead to an attempt to frustrate the tribunal's order. But there was no suggestion of such circumstances in this case.
Mr John Gallagher SC, for the tribunal, said the chairman was required to act fairly at the investigative stage but there was a distinction between that and fair procedures. If the latter meant hearing the other side and giving it a chance to make representations, then fair procedures did not apply at the investigative stage.
The chairman was not required to give notice of the making of orders, counsel said. If and when evidence was to be called which might affect a person, that person must be told and fair procedures must apply.
The tribunal was not a court. It was set up to investigate a matter of exceptional public importance. It would be unworkable if it were required to give all parties prior notice of intention to make orders and to facilitate representations by them.
Counsel said the tribunal was empowered to make such orders as the chairman considered necessary. He was not saying that power was unlimited. There were constitutional impediments. There was a duty to act fairly.
Mr Justice Murphy said a Garda Commissioner with the task of investigating abominable crimes would drool over the powers of the tribunal chairman. Mr Gallagher said the gardai had extensive powers under a range of Acts. The Chief Justice, Mr Justice Hamilton, said the tribunal chairman had wide powers under one Act to make any order he liked.
Closing the appeal, Mr Leahy, for the applicants, said if there was an argument between the practicalities of the tribunal's work and the requirement to vindicate constitutional rights, the latter must prevail.
