Dunnes Stores Ireland Ltd. v. Ryan [1999] IEHC 184 (6th July, 1999)

Judgment of Mr. Justice Kinlen delivered the 6th day of July, 1999. 1. On the 21st January, 1999 before Budd J. an application was made for Judicial Review. The High Court ordered that the Applicants do have leave to apply by way of application for Judicial Review for the following reliefs as set forth in the grounding statement, namely:- (i) An Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint an authorised officer pursuant to Section 19 of the Companies Acts, 1963-1990 to examine the books and records of Dunnes Stores Ireland Limited. (ii) An Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint an authorised officer pursuant to Section 19 of the Companies Acts, 1963-1990 to examine the books and records of Dunnes Stores (Ilac Centre) Limited. (iii) Further or in the alternative an Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint the First named Respondent as an authorised officer pursuant to Section 19 of the Companies Acts to examine the books and records of Dunnes Stores Ireland Limited. (iv) An Order of Certiorari quashing the decision of the Second named Respondent which purports to appoint the First named Respondent as an authorised officer pursuant to Section 19 of the Companies Acts, 1963-1990 to examine the books and records of Dunnes Stores (Ilac Centre) Limited. (v) An Order of Prohibition preventing the First named Respondent from acting or purporting to act as authorised officer for or on behalf of the Second named Respondent. (vi) Further and/or in the alternative an injunction restraining the First named Respondent from acting or purporting to act as authorised officer for or on behalf of the Second named Respondent. (vii) Further and/or in the alternative a declaration that the provisions of Section 19 (5) of the Companies Act 1990 are in breach of the fundamental rights of the Applicants herein and are invalid and of no effect having regard to inter alia Articles 38.1 and 40.1 of Bunreacht na hEireann. (viii) Further and/or in the alternative a declaration that the provisions of Section 19 (6) of the Companies Act 1990 are in breach of the fundamental rights of the Applicants herein and are invalid and of no effect having regard to inter alia Articles 38.1 and 40.1 of Bunreacht na hEireann. (ix) A Declaration that Section 19 (6) of the said Act does not permit the use of statements made by a person in evidence in any criminal prosecution against that person or whether in the alternative that Section 19 (4) thereof does not abrogate any privilege that any person would otherwise possess. (x) Further and/or in the alternative a declaration that no information book or document obtained by the First named Respondent pursuant to his appointment or otherwise and no statements, summary or opinion relating to the content and/or tenor of such information, book or document may be given or communicated to any person except pursuant to Section 21 of the Companies Act, 1990 . (xi) If the necessary injunction restraining the Respondents their servants or agents or any person with notice of the making of this Order in giving or communicating to any person material of the kind set out in paragraph (ix) hereof other than in accordance with Section 21 of the said Act. (xii) Further and/or in the alternative a declaration that any information book and/or document furnished to the Respondents by and/or on behalf of the Applicants shall not be admissible in any subsequent proceedings unless the Applicants shall have explicitly stated that any such information book and/or document was furnished to the Respondents voluntarily. (xiii) Further and/or other reliefs as shall meet and fit to this honourable Court. (xiv) Costs. 2. That the activity of the First named Respondent in acting on behalf of the Second named Respondent or purporting to act as an authorised officer pursuant to Section 19 of the Companies Acts, 1963-1990 to examine the books and records of Dunnes Stores Ireland Limited and Dunnes Store (Ilac Centre) Limited be stayed until the determination of the application for Judicial Review or until further Order or until the stay of proceedings shall have lapsed by reason of the Applicant's failure to serve an originating Notice of Motion herein within the proper time. 3. That the said Applicants do serve an originating Notice of Motion together with copies of the aforesaid statement and verifying Affidavit and of this Order on the Respondents and Notice Parties in the title hereof named in the time allowed by the Superior Courts Rules. 4. That the said Applicants do forthwith notify the Chief State Solicitor of the making of this Order. 5. That the costs of this application and the Order be reserved. 6. Liberty to all parties to apply on 24 hours notice to the other parties and to the Court. 2. The grounds on which such reliefs are sought (as amended) reads as follows:- (a) The Second named Respondent has acted unreasonably and/or irrationally mala fide and/or vexatious, ultra vires and/or in a manner which is an abuse of their powers in making the decision to appoint the First named Respondent. Inter alia she:- (i) failed to consider the information upon which her decision to appoint the First named Respondent as an authorised officer under the Companies Acts was purportedly based in a timely fashion; (ii) failed to have any or any adequate regard to the facts of the Applicant's case and in particular failed to give any or any due consideration to the information already furnished to them by or on behalf of the Applicants; (iii) failed to take relevant considerations and/or took irrelevant considerations into account and, in particular, purported to be of the opinion that there were circumstances suggesting that the affairs of the Applicant are being or have been conducted in a manner which is unfairly prejudicial to some part of its members in circumstances where the members have stated that this is not, and/or has not been the case; (iv) failed to base the decisions on facts which were sustainable and reasonable; (v) failed at the time of the appointment and/or thereafter to have any or any adequate reasons for the said appointment and/or purported to rely upon events which occurred before the enactment of the Companies Act, 1990 as reasons for the appointment complained of; (vi) failed to act in a manner which was proportionate and appropriate in all the circumstances and in particular:- (a) appointed an authorised officer on the basis of information which has already been or is being investigated by other bodies of appropriate jurisdiction; (b) appointed an authorised officer in circumstances where such officers' investigation already have been or is being undertaken by other bodies of appropriate jurisdiction; (c) has unnecessarily exposed the Applicants to harm and prejudice; (d) exposed or tended to expose the Applicants to double jeopardy contrary to law; and (e) appointed an authorised officer in circumstances where the harm and prejudice suffered by the Applicants is out of all proportion to the end which can be achieved by the Second named Respondent whether pursuant to the Companies Acts or otherwise. (vi) The Respondents and Notice Parties having no objection the Court granted the said amendment which read; (vii) made errors of fact and/or law in considering whether to appoint the First named Respondent as an authorised officer pursuant to the Companies Acts; (viii) failed to have regard to the purposes under the Companies Act for which her power to make the said decision was exercisable; (ix) failed to have any or any adequate regard for the consequences of the Applicant companies of such appointment; (x) procured the service of a demand for information which was ambiguous and incapable of fulfilment and unreasonable and threatened by her servants and/or agents criminal sanction for lack of compliance of such demand; and (xi) appointed or purported to appoint an authorised officer under Section 19 of the Companies Act, 1990 in circumstances where such a course was not appropriate and/or in circumstances where she ought to have applied to this honourable Court for the appointment of an inspector pursuant to Section 8 of the Act . (b) The Second named Respondent failed in and/or to have any due regard for the principles of natural and constitutional justice and/or fairness that:- (i) Despite repeated requests made by or on behalf of the Applicants she failed to identify for the Applicant in a timely manner (or at all until ordered by this honourable Court) that the information or matters of fact relied upon by her in order to form the opinion that there are circumstances suggesting that the criteria set out in Section 19 (2)(a), (b)(ii), (b)(iii), (b) and/or (f) existed or exists; (ii) When she ultimately furnished the Applicant with her reasons pursuant to the Order of this honourable Court she failed to answer the Applicant's request for clarification and/or explanation of the ambiguities of same; and (iii) By reason of her failure (ii) above she failed to afford the Applicants any or any adequate opportunity to protect their respective good names and/or reputations and in particular failed to afford the Applicants an appropriate opportunity to make representations in relation to the said appointment. (c) 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 breadth and expense. (d) The First named Respondent has served what purported to be a demand for documentation which is unreasonable and/or ultra vires and/or vexatious in that:- (i) it is vague and/or imprecise and/or ambiguous; (ii) it is incapable of being complied with in a timely fashion or at all; (iii) it is in a form and/or relates to matters which are ultra vires the First named Respondent and/or to which Section 19 of the Companies Acts does not relate to; and (iv) it requires the Applicants to comply with the said demands within a period of time which is wholly unrealistic and unnecessarily short and threatens the Third named Applicant with criminal sanctions in the event that the demand is not complied with. (e) The provisions of the Companies Act, 1990 which are impugned are contrary to Bunreacht na hEireann and are in breach of the rights of the Applicant in that inter alia they:- (i) failed to have any or any due regard to the Applicant's right to confidentiality and/or privacy; (ii) failed to have due regard to the Applicant's privilege against self-incrimination; (iii) failed to protect and vindicate the Applicant's right to fair procedures of natural and constitutional justice and equality before the law; and (iv) constitute an unwarranted and unjustified interference of property rights of the Applicant. 3. The main Affidavit is that of Margaret Heffernan sworn with many exhibits on the 25th January, 1999. She is the Third named Applicant and is a Director of the First and Second named Applicants. The Applicant companies are part of Dunnes Stores group of companies. The holding company is Dunnes Holding Company and the First and Second named Applicants are subsidiary companies of Dunnes Stores Holding Company. She is a Director and shareholder and makes the Affidavit on her own behalf and on behalf of the other Applicants. 4. In or about the years 1991 to 1992 unhappy differences arose between the then Chairman of Dunnes Holding Company, Mr. Ben Dunne and the other members of the Board. In February of 1993 Mr. Ben Dunne was removed as Chairman and in July of 1993 he was removed as an Executive Director of the Company. In addition to Mr. Bernard (i.e. Ben) Dunne being relieved of his executive power in Dunnes Stores a number of key staff who had been central to the manner in which Bernard Dunne ran Dunnes Stores, left the employment of Dunnes Stores. Coming out of these matters proceedings were instituted by Mr. Ben Dunne. In essence the actions were twofold. They included a petition which alleged oppression of Mr. Dunne as a minority shareholder in both Dunnes Stores Holdings and various other related companies contrary to the provisions of Section 205 of the Companies Acts, 1963-1990. These proceedings were compromised in November 1994 prior to trial and all allegations made by Mr. Bernard Dunne were withdrawn. He severed his connection with Dunnes Stores by the sale of all his shareholding interest and the compromise of all claims existing between Dunnes Stores and Mr. Ben Dunne. 5. In the course of preparing to deal with the claims made by Mr. Ben Dunne investigations were made into his stewardship of Dunnes Stores. This investigation was carried out on the instructions of the Solicitors for the Applicants which became known as "The Price Waterhouse Report". This document was produced in contemplation of litigation and is prima facie privileged. 6. This report was examined with the consent of the Applicants by former Judge Gerard Buchanan at the request of the Dail Committee on Procedures and Privileges. But the Judge conducted his examination in such a manner as to protect the privilege attaching to the report in the interest of those persons for whom the report had been made. In due course Judge Buchanan reported to the Committee on Procedure and Privileges. After his report and in circumstances of on-going concern in relation to the allegations a Tribunal of Inquiry was established under the chairmanship of Mr. Justice Brian McCracken by Order dated the 7th February, 1997. The Tribunal heard evidence in April and May and reported on the 26th August, 1997. 7. The Tribunal found no evidence of any impropriety on the part of Dunnes Stores and found that no favours had been granted either to Mr. Ben Dunne or the Dunnes Stores Group as a result of payment having been made by Mr. Ben Dunne to a number of named politicians (most notably Charles Haughey and Michael Lowry) and a variety of political parties. In the context of evidence given by Mr. Cathal MacDomhnaill of the Revenue Commissioners, the Dunnes Stores Group was described as "model taxpayers". After concluding that the Board of Directors bore some responsibility through omission - not having properly supervised the activities of Ben Dunne, the Chairman of the Inquiry found that the other Directors were not involved in the making of the payments. By letter dated the 11th September, 1997 the Tanaiste and Minister for Enterprise Trade & Employment (Mary Harney) wrote directly to Mrs. Margaret Heffernan of the Dunnes Stores Group as follows:- "Dear Mrs. Heffernan, The report of the Tribunal of Inquiry (Dunnes payments) has disclosed a number of possible breaches of the Companies Acts, 1963-1990. As I have responsibility for these Acts I have decided that my department should proceed to make enquiries of certain companies to clarify what breaches did in fact take place. As this herein involves examining the books and documents of certain companies within the Dunnes Stores Group I will be glad to receive your co-operation and that of the group in relation to these enquiries. I hope that you will find it possible to give me a positive reply by Monday, the 16th September, 1997." 8. Mrs. Heffernan in her Affidavit states that these alleged breaches have never been identified and that in the light of subsequent events this is of great significance. 9. Dunnes Stores have been asked to facilitate enquiries undertaken by a number of authorised officers appointed by the Second named Respondent under the provision of the Companies Act, 1990 . These enquiries related inter alia to Garuda trading as Streamline Enterprises (a company owned by Mr. Michael Lowry) and Celtic Helicopters Limited (a company owned by Mr. Ciaran Haughey). 10. Margaret Heffernan states that the only substantial matter in respect of which Dunnes Stores were unable to comply with the requests of the Second named Respondent and/or her authorised officers was the production of the Price Waterhouse Report. This is requested by letter dated 17th February, 1998 and by reply dated 5th March, 1998 it was indicated that in view of the confidential nature of the report, together with the legal professional privilege attaching to it and the fact that it was largely irrelevant to the matters in question, it would not be possible to make it available to the Second named Respondent. In fact, Dunnes Stores disclosed other information which came to their attention at a later stage and sent it to the Moriarty Tribunal. 11. By a letter dated 22nd July, 1998 the Second named Respondent indicated that she had appointed one George Maloney to act as her authorised officer to conduct enquiries into the First and Second named Applicants. This is notwithstanding the considerable effort and resources being devoted to dealing with every aspect of her enquiries to date. Mrs. Heffernan asked the Minister for the basis of her decision, her motivation and the objectives of this appointment. She says that no satisfactory response was received and she says that the only response to the concerns expressed on behalf of the Applicant companies merely reiterated the statutory provisions which she contended empowered her to appoint George Maloney as her authorised officer. Mrs. Heffernan was gravely concerned at the position adopted by the Minister and in particular her refusal to state the reasons for her appointment of Mr. Maloney. The Minister did not give any details of the factual basis of his appointment and in particular did not indicate that it was no longer possible for her enquiries to be dealt with in the same manner as all the other enquiries had been dealt with to that date. 12. Mrs. Heffernan continues that her disquiet concerning the manner of the appointment of Mr. Maloney, its motivation and the course adopted was exacerbated by a request for voluminous amounts of documentation at impossibly short notice and indicated he intended to revisit matters which had been dealt with in great detail before the Tribunal chaired by Mr. Justice McCracken and other Tribunals of Inquiry which had been the subject of extensive correspondence between the parties in which the Applicants and Dunnes Stores generally had endeavoured to deal with in a helpful and conclusive fashion for some time. She was also concerned that Mr. Maloney was subject to a conflict of interest. He was an accountant and his firm acted for her daughter, Anne Heffernan. Mrs. Heffernan expected Mr. Maloney to stand down, however he did not. The Applicants brought an action against Mr. Maloney and the Minister for Enterprise Trade & Employment (hereinafter called "the Minister"). The matter came on for Judicial Review before my colleague Ms. Justice Laffoy. By the time the judgment was given Mr. Maloney had been replaced by Mr. Gerard Ryan, the First named Respondent in these proceedings. Mr. Maloney had in fact resigned on the 12th August just before Ms. Justice Laffoy had dealt with the matter. 13. In Re. Dunnes Stores Ireland Company, Dunnes Stores (Ilac Centre) Limited and Margaret Heffernan, Applicants and George Maloney and The Minister for Industry Trade & Employment, Respondents, Ms. Justice Laffoy delivered her judgment on 18th November, 1998. She refers to the aforesaid letter of 11th September, 1997 from the Minister to Mrs. Heffernan seeking co-operation in connection with enquiries being made by the Minister's department in relation to certain companies. She found that co-operation was forthcoming and there was a considerable amount of communication and passing information on documentation in the Dunnes Stores Group to the Minister's department including Mr. Fisher who had been appointed an authorised officer in relation to Garuda Limited (trading as Streamline Enterprises) and Gerard Ryan who had been appointed authorised officer in relation to Celtic Helicopters Limited. She points out that the only item not produced was the Price Waterhouse Report which was in connection with legal proceedings initiated by Ben Dunne against the Dunnes Stores Group which were compromised in November 1994. The report was a private report and referred to the purposes of litigation then in being. 14. This position was stated in a letter dated 5th March, 1998 to Mr. Fisher. It was not challenged. 15. She points out that Mr. Maloney wrote to Dunnes on the 22nd July, 1998 seeking a meeting with Mrs. Heffernan and her fellow officers on the 27th July, 1998. On Friday, 24th July, Mr. Maloney sent to Dunnes and Dunnes Ilac schedules of "initial documentation required" and requested that the documentation should be available for inspection and removal following a meeting on the following Monday, 27th July, 1998. He required an enormous amount of documentation over a weekend. However, when the matter came before Laffoy J. on 5th November, 1998 Mr. Fitzsimons on behalf of the Respondents stated that the demand issued by Mr. Maloney was no longer extant and was no longer being relied upon by the Respondents. 16. In that case, the Applicant sought to certiorari the decision of the Minister to appoint authorised officers and, in particular, the decision to appoint Mr. Maloney and to quash the demand complained of in the aforesaid letters and schedules dated 24th July, 1998 and issued by Mr. Maloney and an Order of Mandamus directing the Minister to furnish the reasons she appointed Mr. Maloney pursuant to Section 19 of the Act 1990. The Applicants' claim was grounded on the contention that the Minister had acted unreasonably, irrationally and in a manner which was ultra vires and had failed to have any or any due regard to the principles of natural and constitutional justice and fairness on various bases including failure to give adequate reasons or failure to identify information or facts relied upon to form the opinion that circumstances suggesting that the criteria set out in the relevant paragraphs of subsection (2) of Section 19 existed or on an erroneous interpretation of Section 21 of the Act of 1990. It has also been alleged that to exercise the power to appoint an authorised officer pursuant to Section 19 of the Act "is not the subject of any judicial or quasi judicial debate whereby the company must be heard herein in manner alleged or at all". However, Mr. Fitzsimons in that case, on behalf of the Respondents admitted that the power conferred on the Minister by Section 19 of the Act of 1990 is judicially reviewable. "The disclosures made in the Respondents' Affidavit, while creating the impression of a type of evidential "shadow boxing" were represented as being expositions of the material on which the Minister's decisions were based. In my view, this is not an accurate representation of the disclosures, because in the case of the material garnered from the previous Section 19 enquiries, all that was disclosed was the source of the material, not the material itself, in respect of which the Minister regarded herself as being constrained by Section 21. In any event, having regard the position evinced, by (the Respondents) issues which arise on this application will be determined on the basis that no reasons whatsoever have been given by the Respondents for the decisions sought to be impugned". She ends that "the issue as to whether the Price Waterhouse report is privileged does not arise on this application and I express no view whatsoever on the issue". 17. She held that, "having regard to the nature of the power conferred on the Minister by Section 19, the Court is entitled to review the formation of the opinion which must precede the Minister's decision under Section 19 on the same basis as the Supreme Court held that the opinion which precedes a decision under Section 31 (1) of the Broadcasting Authority Act, 1960 is reviewable". In The State (Lynch) -v- Cooney , [1982] I. R. 237. At p. 361, O'Higgins C. J. stated:- "The Court is satisfied that the subsection does not exclude review by the Courts and that any opinion formed by the Minister thereunder must be one which is bona fide held and factually sustainable and not unreasonable." 18. And she quotes with approval the judgment of Henchy J. at p.380:- "It is to be presumed that when it conferred the power, Parliament intended the power to be exercised only in a manner that would be in conformity with the Constitution and within the limitations of the power as they are to be gathered from the statutory scheme or design. This means, amongst other things, not only that the power must be exercised in good faith but that the opinion or other subjective conclusion set as a pre-condition for the valid exercise of the power must be reached by a route that does not make the exercise unlawful - such as by misinterpreting the law or by misapplying it through taking into consideration irrelevant matters of fact or through ignoring relevant matters. Otherwise the exercise of the power will be held to be invalid and to be ultra vires." 19. She held further:- "Secondly, while the power conferred by Section 19 is a discretionary power, its exercise is subject to constraints similar to the constraints which the Supreme Court held in East Donegal Co-operative -v- The Attorney General, [1970] I. R. 317 which fettered the exercise of power to grant a licence under the Livestock Mart Act, 1957. These constraints were identified by Walsh J. at p. 343:- 'All the powers granted by the Minister by S.3 which are prefaced or followed by the words 'at his discretion' or 'as he shall think proper' or 'if he so thinks fit' are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which casts upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will'." 20. Laffoy J. therefore concluded that the exercise of the power conferred on the Minister by Section 19 is reviewable for compliance with the requirements of fair procedure. She reviewed the decision of the Supreme Court delivered 28th July, 1998 in Haughey -v- Moriarty where she states:- "Under Section 19 the Minister is required to form an opinion that there are 'circumstances suggesting' that one at least of the states of affairs catalogued in paragraphs (a) to (h) of subsection (2) exists in relation to the body.... Alternatively then the Minister may authorise an officer of her department or as happened here a person other than an officer to require the body to produce specified books or documents. The demand is made to the person affected by the requirement to produce. On receipt of the demand the person on whom it is made, and who is the person who is thereby affected, has an opportunity to make representations including the type of representations exemplified in the passage from the judgment of the Chief Justice in which he stated:- 'Such representations could conceivably involve a submission to the Tribunal that the said Orders were not necessary for the purpose of the functions of the Tribunal that they were too wide and extensive having regard to the terms of reference of the Tribunal and any other relevant matters.'" 21. It was argued before Laffoy J. and before this Court that the appointment of an authorised officer of itself was detrimental to the Applicants in that it was a necessity preceded by the formation of an opinion as to the existence of one of the state of affairs catalogued in subsection (2). It was submitted that it would be deleterious to the reputation of the Applicants if knowledge of the making of the appointments came into the public domain. Fair procedures require that the Applicants should have been given advanced notice of the appointments and an opportunity to make representations to obviate that detriment. Mr. Hardiman argued in both Courts. Laffoy J. states:- "Notwithstanding the safeguard contained in Section 21 and the fact that officers of the Minister's department are bound by the Official Secrets Act, 1963 , no-one can guarantee that the existence of an authorised officer appointed under Section 19 will not become public knowledge. An obvious source of a leak could be subsection (4) of Section 19 which empowers an authorised officer to seek an explanation from any person who is or was a present or past officer or employee of the body in question. Be that as it may, in my view the possibility of public exposure of the existence of an authorised officer does not give rise to a detriment the nature of which requires that notice of an intended appointment and an opportunity to argue against such appointment be given. I accept the argument advanced by Mr. Fitzsimons that with the privilege of incorporation come obligations and duties and statutory impositions and that the impositions embodied in Part II of the Act of 1990 become in effect part of the constitution of the company which the company has to endure. The Minister is the regulator of companies and given that the privilege of incorporation is open to abuse in myriad of ways the Minister's investigative role is essential. When that investigative role is performed by an authorised officer under Section 19 he merely investigates and obtains information. He makes no finding or decision in relation to the company or its officers which is final or conclusive or could be detrimental in any real sense. If all he does is procure and inspect documents and obtain explanations. The risk that his investigation will become public knowledge and that the company may be perceived as being "tarred with the same brush" as other companies which have been subject to the Section 19 procedure, which is the gist of the Mr. Hardiman's argument is part of the price the company's proprietor pay for the benefits of incorporation. There are no doubt ministerial powers which can only be exercised if advance notice and an opportunity to make representations is given to the person affected. The power contained in Section 31 (1) of the Broadcasting Authority Act, 1960 may be such a power as the judgment of Walsh J. in The State (Lynch) -v- Cooney at p. 372 suggests. However, an Order under that Section is directed to a third party, Radio Telefis Eireann not to the person affected so that there are strong parallels between that case and the situation which arose in the Haughey case. In my view the power conferred on the Minister by Section 19 is not a power the exercise of which requires advanced notice by the giving of an opportunity to make representations." 22. In a carefully reasoned judgment setting forth particulars of judgments depended upon by both parties she states:- "The Minister has represented that she has disclosed the material upon which her opinion was based but, as I have already indicated, as regards three sources of material the previous Section 19 investigations, there has been no real disclosure of information. The Minister's opinion and the exercise by her of the power conferred by Section 19 are reviewable. In my view, in adopting the stance which has been adopted, the Minister has, in effect, rendered her decision unreviewable. It is true, as submitted by Mr. Fitzsimons that the Applicants are not entitled to a review of the Minister's decision merely on the basis that it is wrong; they are not entitled to an appeal on the merits. However, they are entitled to have the decision reviewed on the lines indicated above and in my view they are utterly stymied in the exercise of that right by reason of the refusal to give reasons for the decision. In my view this is a case in which procedural fairness requires that the Minister give reasons for her decision. The Applicants have demonstrated that they bona fide believe that the Minister has misused her power by appointing an authorised officer. Whether that belief is well-founded, or not, they are entitled to explore the possibility of obtaining redress by way of Judicial Review. They have made a bona fide request for reasons. In the absence of reasons, they cannot explore the possibility of or pursue redress by way of judicial review. Consequently, they are suffering a significant detriment. I consider that the Minister is obliged to give reasons. Following the approach adopted by Blayney J. in the International Fishing case, I propose giving declaratory relief rather than quashing the Minister's decision or making an Order of Mandamus and in doing so and I adopt the reasoning of Blayney J. at p.157. I must, however, have regard to the provisions of Section 21 of the Act of 1990." 23. It was then argued before Laffoy J. that the demand for documents stated by Mr. Maloney was not merely excessive but unreasonable. She had to decide whether the demand was within Section 19 , whether it is reasonable in content and whether it was reasonable in terms of the time allowed for compliance. She held that the Applicants' criticisms of the demands were well founded. She stated:- "Without knowing the reasons why the Minister thought it appropriate to appoint an authorised officer, it is impossible to form any view as to whether even the categories of documents sought which are specific fall within the ambit of the entitlement to seek documents under Section 19 . The inclusion of the categories which are of a general nature gives the demand, as a whole, the hallmark of a trawl. That being the case, the only reasonable inference was that the demand was excessive in content." 24. She heard evidence that took a very long time and with great disruption to the business of Dunnes Stores but continued that even without that evidence in the case, the demand could not be complied with between Friday and Monday afternoon. She finds, as obiter, that the demand was both excessive and unreasonable. She also found that Mrs. Heffernan had locus standi. The Order she made was "a declaration that the Applicants are entitled to be furnished by the Minister with a statement in writing setting out her reasons for the appointment of an authorised officer in relation to Dunnes and Ilac pursuant to Section 19 . In so far as the reasons will otherwise involve disclosure information, which was obtained under Section 19 or Section 20 in breach of Section 21 , she adopted Mr. Fitzsimons' suggested possible way out of the dilemma created by Section 21 ". The order directed that the Minister swear an Affidavit setting out in full the reasons for her decision. The Affidavit should be lodged with the Chief Registrar of the High Court not later than 4 p.m. on Friday, 27th November, 1998. The Chief Registrar will be at liberty to furnish a certified copy of the Affidavit to Mr. Shubotham (a member of the firm of solicitors to the Applicants) on production of an Affidavit sworn by Mr. Shubotham, identifying the Directors of Dunnes and the Ilac and the Chief Executive Officer and the Chief Financial Officer of each company and undertaking not to furnish the Affidavit or any copy thereof or disclose the contents to any person other than the foregoing officers of the companies except by leave of the Court and Affidavits from each of the said officers containing their undertakings in similar terms giving liberty to apply. She awarded the Applicants their costs. There was no appeal of this decision. 25. In these circumstances, the Court is bound by that decision unless there are fresh grounds which were not considered by Laffoy J. The question of distinguishing it does not arise in the present case. 26. Mrs. Heffernan in her Grounding Affidavit objected to the appointment of George Maloney by letter dated 22nd July, 1998. His appointment was made, she alleges, notwithstanding the considerable effort and resources which had been devoted to dealing with every aspect of the Minister's enquiries to date. Mrs. Heffernan asked the Minister for the basis of her decision, the motivation and objectives of her appointment and she got no satisfactory response. The Minister merely reiterated the statutory provisions which she contended empower her to appoint him as the authorised officer. In particular, Mrs. Heffernan was concerned that the Minister did not give any detail of the factual basis for his appointment and, in particular, did not indicate why it was no longer possible for her enquiries to be dealt with in the same manner as her previous enquiries. It was quickly confirmed by the ridiculous request for a voluminous amount of documentation on Friday and that it was provided by the following Monday, much of which had already been dealt with in great detail before the McCracken Tribunal and other Tribunals. After the decision of Laffoy J., an Affidavit was sworn on behalf of the Second named Defendant and it purported to set out in full the reasons for her decision to appoint, firstly, Mr. Maloney and then replace him with Mr. Ryan. Mrs. Heffernan says that the Schedule of reasons appended to the Affidavit had not quieted her concerns. In fact, she says that the Affidavit confirms what she had long suspected, namely, that the determination of the Second named Respondent to appoint authorised officers does not in truth promote to initiate an investigation justified and/or necessitated by the terms of Section 19 of the Companies Act, 1990 but rather was unnecessarily based on a misunderstanding or misapplication of the law and was irrational or prompted by an improper motive. In particular, the reasons identified by the Minister fall far outside the matters for which she has statutory responsibility. They relate to events which have been well known for a considerable time. Further, several of the issues involved have already been the subject matter of other investigations and there is no discernible purpose that is being served by the investigations and mandated to the authorised officer which are, in effect, a repetition of investigations into the affairs of Dunnes Stores already carried out:- "An important issue in determining whether the appointment of an authorised officer had been made bona fide, is the manner in which the Minister sought to avoid giving reasons for the appointments when challenged in the proceedings heard by Ms. Justice Laffoy. Initially her refusal to give reasons was based on the alleged application of Section 21 of the Companies Act, 1990 (she claimed to be statutorily prohibited from giving out reasons). To this end a rather complicated formula was worked out with the giving of reasons on affidavit so as to avoid any possibility of a breach of the statutory provisions. Significantly, when the reasons were given, none of them appeared to me to flow from an investigations of third parties or reasons that could not be given because of the terms of Section 21 . While the Second named Respondent has consistently raised a concern that the provisions of Section 21 be respected, I believe that this concern is disingenuous. My first reason for saying this flows from the observations contained in the proceeding paragraph, namely, that despite the assertions to the contrary, none of the Second named Respondent's reasons appear to me to flow from an investigation to which Section 21 applies. Secondly, I believe that Section 21 is in fact being breached by or on behalf of the Minister. I have already referenced it in an affidavit filed in the judicial review proceedings referred to above to the fact that the news room of Radio Telefis Eireann was contacted by persons acting on the Second named Respondents behalf so as to alert them to the existence of the judicial review proceedings. In addition, I believe that material is being routinely published in the newspapers but could only have found its origin in investigations currently being undertaken by the Minister's department." 27. By way of example, she refers to the copies of two newspaper reports. These articles appeared in the Sunday Times and Mrs. Heffernan proceeds to complain that the Dunnes Stores companies never consented to information being disclosed. There was information (in relation to Garuda Limited and Celtic Helicopters Limited) which she says, "is in the sole and exclusive possession of the said authorised officers and the Minister, their servants or agents. I further say that there is a manifest risk of further disclosure of information relating to the Applicant companies unless restrained by this Honourable Court". She adds, "I believe that the leaking of such materials suggests my misgivings both about the motives of the Second named Respondent and the manner in which the confidentiality of sensitive records and information to be compromised are well founded". She complains that the confidential information given to authorised officers which were leaked are clearly in breach of Section and are potentially damaging to the Applicants and also, in some instances, defamatory. Under the Freedom of Information Act, there is an inter-departmental memo which considers that the most advantageous way for the Minister to proceed would be under Section 19 rather than an inspector appointed by the High Court under Section 8 . The memo includes the following paragraph:- "While Section 19 allows for the examination of the books and documents of both Dunnes Stores companies and for explanations to be sought by past and present officers, its scope is clearly not as wide as a Section 8 appointment. Nevertheless, a decision on this basis should make some progress and should improve the quality and quantity of information on the companies. The one major advantage of this approach is that if it were to be judicially reviewed (a likely possibility) we should have a very strong defence but a positive decision on any such appeal would make it very difficult for the parties involved to refuse co-operation with the authorised officer. If circumstances demanded a Section 8 application at a later date, there would, if it is considered, have a stronger grounds to make such an approach." 28. She complains that the new letter from the new authorised officer is really a repetition of his predecessor's letter and would take months to satisfy and it would be more appropriate if an inspector appointed under Section 8 would require merely a request for documents. She points out:- "Para 27: Items which featured prominently in correspondence and in the Affidavits sworn on behalf of the Second named Respondent during the first judicial review proceedings do not feature at all in the reasons now given for the Minister's actions. Mention has already been made of the now obvious inapplicability of Section 21 . An Affidavit sworn by Paul Appleby on 4th September, 1998 also suggests (at paragraph 19) that information relevant to the Minister's decision emanated from the enquiries set up by the Institute of Chartered Accountants." 29. She sets out in paragraphs 26 and 27 of her Affidavit that the inconsistencies cast doubt on whether the reasons now given were truly operative at the time of the impugned appointment. 30. In the opinion of this Court in a judicial review it is essential that the reasons given in Court are truly operative at the time of the impugned appointment. 31. The Respondent, Gerard Ryan (the authorised officer) wrote a letter on 18th January, 1999 directed to Mrs. Margaret Heffernan in which he required her to produce documents to him at the Department Offices in Kildare Street not later than 4 p.m. on Friday, 22nd January. Amongst the items requested were copies of the audited accounts of Dunnes Stores Ireland Company for all the years since incorporation and concludes, "and take notice that a failure to comply with this requirement may constitute an offence under Section 19 (5) of the Companies Act, 1990 and will therefore lead to prosecution". Mrs. Heffernan complains about the scope of this enquiry which she says is more appropriate as that which would be sought by an inspector. She adds:- "Complaints about the scope and the time allowed for compliance with such notices has already been made in respect of the demand delivered by the First named Respondent's predecessor. In such circumstances, I am at a loss to understand why a second notice should be delivered which suffers from the same defects and which, yet again, underpins this unreasonableness by the threat of criminal sanction. Such an occurrence copper-fastens my view that the Respondents are intent upon misusing their power." 32. She points out how difficult it would be to trace and exclude all charitable donations made by Dunnes Stores or any of their directors including the former Managing Director, Ben Dunne, and her two deceased sisters. The present demand is directed to her personally. She is concerned about the scope and time scale of the Minister's requirements. Both the demand on 18th January, 1999 and the previous demand of August 1998 were accompanied by an express threat of criminal prosecutions in the event of non compliance. 33. Laffoy J. found that the Second named Respondent was wrong in law in failing to give reasons for her appointment when asked so to do and that her authorised officer's demand was found to be unreasonable both in its extent and in the time allowed for compliance with it and it bore the hallmarks of a "trawl". She makes the point that this new demand from the new authorised officer, apart from its intrinsic impropriety, is impossible to comply with in the time allowed. She says, "it is hard to believe that the Respondents were unaware that it was impossible to comply with". She says that she "gravely fears that unless a stay is placed on the activities of the First named Respondent the Applicants herein both corporate and individual will be subjected to prosecution and/or a search in a manner calculated to cause grave and possibly irreparable damage to their reputations and the Respondents may take possession of documents to which they are not entitled". 34. However, she points out that the case of co-operating with previous Section 19 officers is praised in the judgment of Laffoy J. on p.2 of her judgment. 35. She adds, "the Applicants accordingly believe that there is 'no specific lawful reasons' in support of the decision to appoint an authorised officer but says the point is rather based on a desire to general access to the records of the Applicant companies in respect of a particular period". There is no indication whatever of any current concern. The focus of the reasons relates entirely to a period which events have already been thoroughly investigated and continue to be subject to an investigation by the Moriarty Tribunal. 36. She then has regard to the headings in the Schedule furnished to her by the Minister for the purpose of making a number of observations in relation thereto. Most of these matters are also addressed in their legal submissions. At first the Minister refused to give reasons for her decision at all. In the words of Laffoy J., "this utterly stymied the Applicants in questioning the decision". She asserted that now that the obstacle placed in the path of the applicants boasts of a more subtle construction it is no less effective to the barriers of the assertions of their rights. The Applicants assert that they continue to be stymied in questioning the decision. The Minister has refused to give any indication as to what the term, "standards of corporate governance" means. It was pointed out to her about the concern to be historic rather than to raise concerns about the current events. She does not make any current allegations in respect of Mrs. Heffernan or her brother Frank Dunne and her current concerns seem to relate to what was perceived as shortcomings in the past management and financial structures. She definitely argues that the term "corporate governance" has no application to private companies in the sense applied to public companies but that private companies are required to operate within the terms of their memorandum and articles of association and in accordance with law and the Minister has no legitimate interest in the conduct of affairs of the applicant companies so long as they are so conducted. The Minister always refers to "corporate governance" but she has not explained her reasoning but has in fact declined to tell Mrs. Heffernan. Section (2)(b)(ii) - she finds it curious that the Companies Act should be invoked in relation to the alleged possibility that the Revenue Commissioners had been at fault on the basis of information which is available to the Commissioners themselves. In practice, what the Minister seems to convey is that she is not satisfied with the Revenue Commissioners and that she going to carry out the investigations herself. The Commissioners also gave evidence in relation to the tax compliance of Dunnes Stores previously discussed in this judgment and regarded the group as "model tax payers". She points out that at all times the Dunnes Stores Group have expended considerable resources and time in and about the compilation of details of every penny paid to Mr. Lowry and the companies under his control and have furnished these to the Second named Respondents' authorised officers. It is difficult, therefore, to see any investigation and/or purpose to the appointment of the authorised officers at all. The fact that the Minister's appointees have been given all information requested is not disputed. As regards Section 19 (2)(b)(iii) and Section 19 (2)(d), Mrs. Heffernan points out:- "that no member of the Company has raised any concern with the Second named Respondent. In addition, even though there have been matters of historical concern (to borrow the Minister's phrase) the shareholders of Dunnes Group Stores are all party to a settlement of claims made against them both at the time of settlement in November 1994 and into the future. All were appropriately advised in advance of this settlement and were in possession of all relevant information. The Second named Respondent is, or should be, aware of the litigation which led to the settlement since it was dealt with in the McCracken report. Since she is not in a position to advance the interests of any of the members of the Company in any way, the Second named Respondents' enquiries are purposeless. The power to appoint and investigate are not to be exercised in a vacuum . I am advised and believe that reason must be exercised in such appointments. I see no reason being served by an investigation which has no purpose and will advance no interest. In fact the damage being caused by these unfounded actions of the Minister are damaging the interests of the members. I am forced to conclude that the power to investigate is being used for an ulterior motive which I have yet to ascertain. Given the Minister's refusal to give reasons and then the paucity of reasons and the abandonment of positions adopted to avoid giving reasons, my concerns in this regard have been heightened. I repeat my strong suspicion from information obtained from investigations being circulated by a person or persons unknown in the newspapers and other media." 37. She admits that there has been a deliberate override of the controls in place from a small number of senior people who acted in close association with Ben Dunne and who are no longer part of the group. She says:- "I made this clear to the Second named Respondent in correspondence and indeed a similar finding is to be found in the McCracken Tribunal report. The motives of the Minister must be suspect in the circumstances where she has never seen fit to request any information from the Group in relation to either its current management structures or the structures in place during the stewardship of Bernard Dunne". She adds:- "I am perplexed to see the reference to payments of £180,000 now being referred to by the Second named Respondent as one of her reasons for appointing an authorised officer. I say and believe that once the Applicants were notified of the Recipients of these payments they immediately furnished the First named Respondent with all the information available to them by letter dated 23rd January, 1998. While it transpired that either he or the Second named Respondent were already aware of the details of the payments I say that the Applicants' response was timely and open. For good measure the Applicants also notified the Moriarty Tribunal on the same day. I say that neither the First or Second named Respondent have pursued the matter further with the Applicants". She adds:- "The reference to the Group's failure to obtain all of those certificates in relation to certain financial years misrepresents by emphasising the issue. I find it difficult to accept that lateness in laying accounts before an Annual General Meeting could really justify the appointment of an authorised officer to either of the Applicant companies and all the commercially damaging consequences which flow from such an appointment and, particularly, where no objection is forthcoming from the members to such lateness. If this is so, a considerable number of companies as well as several Semi-State companies would face similar damaging action by the Second named Respondents. No member of the Applicant Companies has been prejudiced by these matters and the Revenue Commissioners have been kept fully up to date on the issues pursuant to the Company's obligations. I believe that Dunnes Stores has worked hard and well despite the existence of a number of uncertainties which has now been resolved in bringing the accounts up to date." 38. She then refers to the demand received from the First named Respondent on 18th January, 1999 and says:- "As appears from the terms thereof, it is now clear that the appointment of an authorised officer is being used to conduct improper and unnecessary enquiries. Inter alia, the Applicants have been asked for all correspondence relating to an alleged failure to obtain auditor's certificates. I say and I am advised that any failure to lay accounts before a general meeting of the Company is a strict liability offence. The reasons why such a failure occurred is therefore wholly irrelevant to any enquiry into alleged breaches of Company Law. I repeat my assertion that any such failure is an improper basis for the appointment of an authorised officer. To this I now add that from the terms of the notice it is clear that this failure is being used as a pretext for more general investigations into the Applicants. Furthermore, the use of the word 'delay' itself seems to assume wrongdoing on the part of the Applicant." Section (2)(b)(ii) - "Once again it is clear that the only creditor in question is the Revenue Commissioners. As outlined above the Second named Respondent is aware from the findings of the McCracken Tribunal and from her own investigations that Dunnes Stores have made full disclosure of all matters arising as a result of the Price Waterhouse Investigations and report including the items highlighted by the work of the McCracken Tribunal. She also knows the favourable assessment of Dunnes Stores given by the Commissioners I cannot understand the purpose of the Second named Respondent's decision in view of the fact that the Commissioners are appraised on all matters and have all powers necessary to investigate and prosecute as necessary. The compliance with the provisions of the tax code is not a matter which is properly the reason for an investigation pursuant to the Companies Acts." 39. Again she says:- "By way of general observation, I say the facts of the information cited in the Second named Respondent's Schedule has been known to her (and a large part of the general public) for some time and has been the subject of investigation already must cast doubts on the motives of the Minister and is not to be open to question whether further investigations can serve any legitimate purpose under the Companies Acts. Since the events occurred for the most part before the 1990 Act even passed into law and the Second named Respondent has already confirmed that she does not allege any wrongdoing on the part of myself or my brother, the appointment is inappropriate and invalid." "34. This is not a situation where the Second named Respondent credibly claimed to be in the dark as to the Company's affairs. Dunnes Stores has had its business affairs subject to unprecedented enquiries and has co-operated fully with each of them. The Applicants have already co-operated with the enquiries of Judge Buchanan and the Tribunal chaired by Mr. Justice Brian McCracken. They continue to co-operate with the authorised officers appointed to Garuda Limited, Guinness & Mahon Limited and Celtic Helicopters Limited. The Applicants have also expended resources facilitating the Tribunal chaired by Mr. Justice Moriarty and the Committee of Inquiry established by the Institute of Chartered Accountants which is chaired by Mr. Justice Blayney. Indeed several of the various issues raised by the Minister are currently before the Moriarty Tribunal and yet she evinces no interest in awaiting the findings of that body before commencing a further layer of investigation on her own." "35. There most be some proportionality between the exercise of a power such as that conferred by Section 19 and the objectives to be achieved. In this regard I say that it is highly significant from the outset I have been most anxious to meet the Second named Respondents in order to discuss how the Companies with which I am associated might co-operate with her legitimate enquiries if the legitimate interests of the companies are protected. I have offered to meet with her on a number of occasions. All such offers have been refused. I believe that with power comes responsibility. The exercise by the Minister of the powers provided for in Section 19 requires an opinion to have been formed. Part and parcel of such opinion is a determination that the exercise of the powers are appropriate and that a legitimate purpose will be served by the imposition of the obligations through the exercise of the powers. The lack of such a purpose has been amply illustrated by certain events which have taken place since the Minster's reasons were given. and the stay on actions by Mr. Ryan expired." "36. I say and believe that Solicitors acting on my behalf have been contacted by firstly the Chief State Solicitor's Office and, secondly, by the First named Respondent concerning his proposed investigations. Notwithstanding the fact that Mr. Shubotham, a solicitor acting on my behalf, offered to attend Mr. Ryan for the purpose of learning what documentation was required. This offer was refused. The First named Respondent made it clear that he did not propose issuing a list of the documentation which he wished to see but rather desired to interview members of Dunnes Stores. I am forced to conclude that this officer of the Minister's department who is so clearly involved in the investigations which the Minister has been making in the past illustrates the distinction between the powers that the Minister has under Section 19 and the purpose and desires which the Minister is seeking to fulfil by the appointment in question. I say that this is not a simple appointment for the purposes of investigating documentation but is, in effect, an inquisitorial investigation in which the authorised officer anticipates getting a role quite different to that provided for in Section 19 and more akin to an inspector appointed by the High Court. In that circumstance, the desire of the Second named Respondent to circumvent the safeguards that are associated with the appointment of an inspector assumes an altogether more sinister air." "37. In assessing the motives of the Second named Respondent, I have been struck by her demeanour whenever the Applicants have attempted to make submissions to her. At the outset, she refused to entertain any meeting between myself and herself. Notwithstanding the fact that the judgment of Ms. Justice Laffoy contemplated the making of submissions and thus reasons for the appointment being given, the opportunity to make such submissions were effectively denied by reason of the Second named Respondent's failure to furnish the clarifications sought. Furthermore, the matters contained in my letter of 23rd December, 1998 have been effectively dismissed out of hand. In the circumstances, the right to make representations has been lost." "38. Although the Second named Respondent has now introduced an element of specificity to her reasons, this sits very uneasily with the all embracing requests for information served by the First named Respondent's predecessor, George Maloney. As Ms. Justice Laffoy remarked on page 30 of her judgment, "the inclusion of categories which are of a general nature give the demands as a whole the hallmark of a trawl. That being the case, the only reasonable inference is that the demand was excessive". Although the Respondents have sought to resile from the demand and it has now been withdrawn, at least one of my previous observations in its regard holds good. This arises from the fact that it was served almost immediately after Mr. Maloney's appointment and therefore was clearly not the product of his assessment of the documentation necessary to his investigation. In fact, from the information provided following my request under the Freedom of Information Act, it is clear that early drafts of demands for information were prepared by the Department." 40. She then refers to Exhibit MH12 and continues:- "I say and believe that the demand was crafted by the Second named Respondent and her Department. While she now attempts, therefore, to characterise her appointment as having been prompted by specific areas of concern, it is clear that at the time of the appointment of the First named Respondent, the Minister had no such objective in mind ." "39. In the circumstances where the field of enquiry proposed by the Second named Respondent is nebulous, the ultimate use to which information which is gleaned from the Applicants may be put is an obvious source of concern. The appearance of material in the newspapers has already been touched upon and I believe there is no need for me to labour the obvious commercial and personal damage which might result in information obtained from the Applicants if it were to be divulged in the same fashion. However, I am also advised that while it is an offence to refuse to provide the First named Respondent with such explanations and/or statements as he may request, any such statement made in pursuant to Section 19 (6) of the Companies Act, 1990 is capable of being used in evidence. I say and believe that the failure of this subsection to protect and vindicate my rights and those of the other Applicants is clearly contrary to the provisions of Bunreacht na hEireann." "40. In addition, I say that what is proposed is yet another round of investigations into information and allegations which have long since being in the public domain and have already been or are the subject of investigation and in fact continue to be investigated by the Moriarty Tribunal. An investigation under Section 19 cannot alter the quality of the information at the Second named Respondent's disposal and will simply divert yet more resources and staff for no good reason. If the Minister truly believes that the matters cited by her constitute breaches of the Companies Act , the appropriate course would be an application for the appointment of an inspector under Section 8 of the 1990 Act . As appears from the material disclosed under the Freedom of Information Act, the Minister pulled back from this course of action previously. While such an appointment would itself be traumatic and costly, the applicants would strenuously resist it. I say and believe that it would at least represent some finality in the ongoing cycle of enquiry and the opportunity to have the matter properly determined by a Court rather than in the arbitrary and ill-motivated manner, which has been operated by the Minister to date." "Having regard to the memorandum exhibited above (at MH8) it is clear that the Minister is of the erroneous opinion that the appointment of an inspector will ultimately be necessary. This view is supported by the actions of the First named Respondent to date. The Applicants herein have not alleged that the Second named Respondent failed to exercise her power under S.19 (2) in accordance with the terms thereof." 41. In a statement of opposition dated 22nd February, 1999, the Respondents, inter alia, state:- "The Second named Respondent has complied fully with the requirements of Section 19 in appointing the First named Respondents as authorised officer to the First and Second named companies." 42. They also said that the Second named Respondent has complied with the Order of the High Court of 18th November, 1998 already recited. She has furnished reasons for her decision to appoint the First named Respondent as an authorised officer to the First and Second named Applicants. Paragraph 7 of the Statement of Opposition reads:- "Such information, book or document as may be obtained by either of the Respondents herein pursuant to Section 19 of the Companies Act, 1990 may not be disclosed save in the circumstances set out in Section 21 of the said Act. Where material has been obtained pursuant to an appointment under Section 19 (2) by the Second named Respondent as the Minister entrusted in that regard, the Minister is not entitled by way of explaining her actions or otherwise than in accordance with Section 21 of the Companies Act, 1990 to supply such information to the First and Second named Applicants herein or to act otherwise than in accordance with the powers conferred on her in relation to dealing with the said information by Section 21 of the said Act." 43. It is also alleged that the demand for books and documents and explanations have been made within the powers conferred by Section 19 of the Companies Act, 1990 and are valid. Paragraph 9 provides:- "It is denied that any request for information made by the First named Respondent was in any way ambiguous or incapable of fulfilment or unreasonable or ultra vires or vexatious or that it threatened criminal sanctions for non compliance with such demand as alleged or at all." 44. Paragraph 10 provides:- "By Order of this Honourable Court on 18th December, 1998 it was ordered that the First named Respondent take no action on foot of his appointment by the Second named Respondent until after 4th January, 1999. On 5th January, 1999 and thereafter, the First named Respondent attempted to procure the co-operation and assistance of the First and Third named Applicants in relation to the exercise of his duties as authorised in respect of the First named Applicant company. The formal request by the First named Respondent by letter of 18th January, 1999 to the First and Third named Applicants for documentation was necessitated by the continued failure, refusal and neglect of the First and Third named Applicants to render any co-operation or assistance in relation to the First named Respondent's exercise of his functions." 45. It is also denied that a principle of proportionality can be relied upon by the Applicant. What is specifically pleaded is that a principle of proportionality is not applied to enquiries under Section 19 . 46. The opposition also denies that the third named Applicant has any right under the Constitution to confidentiality or privacy. It denies the provisions of the Companies Act which are impugned by the Applicants will in fact breach the Constitution. 47. There had been a dispute as to whether the Affidavit with reasons should be made by the Minister or an official. It was mentioned to Ms. Justice Laffoy and she made an Order on 18th December, 1998 declaring Mr. Appleby of the Department, the appropriate person to swear the Affidavit. 48. Mr. Gerry Ryan swore an Affidavit in this matter stating that as he was new to the investigation and in view of the fact that Laffoy J. had considered the previous request of Mr. Maloney being excessive that he, Mr. Ryan, wished to discuss the contents of any letter or request with the appropriate representative of the Company before formally issuing such a letter. However, the Applicant's solicitor, Mr. Shubotham, suggested meeting him to discuss the documentation required. He tried again to arrange a meeting with the appropriate officers of the Company but failed and then issued a formal request to the Third named Applicant for the production of four categories of books and documents of the Company. He explains the reasonableness of his requests. He described the description by Mrs. Heffernan that an institution of proceedings would cause the Second named Respondent to take every step to maximum publicity. He regards these averments as scandalous and unworthy of comment. He only issued his formal request because he did not meet them. If they had said that the time scale was insufficient he would have tried within reason to accommodate them. 49. Paul Appleby is the Principal Officer of the Company Law Administration Section of the Department of Enterprise, Trade and Employment. He had filed the Affidavit in accordance with Ms. Justice Laffoy's orders of 18th November, 1998 and 18th December, 1998. 50. Significantly, a number of statements in his Affidavit were accepted at the trial by the Applicants as being correct. Paragraph 8 provides:- "The First and Second named Applicants are companies which enjoy the privilege of limited liability in accordance with the Companies Acts, 1963 to 1990. Because these companies have an entirely separate and distinct personality from that of its promoters, directors or shareholders, the Companies Acts provide that in return for the great benefit of limited liability and separate existence, the companies must be prepared to submit to regulation and scrutiny by the Second named Respondent who is the regulator of company affairs and has duties and responsibilities imposed upon her to ensure that legislation in relation to companies is enforced and, in particular, that the privilege of incorporation as an entity with limited liability is not abused." 51. Paragraph 9 provides:- "Since Section 19 of the Companies Act , is a legislative provision which enables the Minister, if the Minister is of opinion that there are circumstances suggesting the existence of one or more of the various states of affairs specified in subsection (2) to obtain the books and documents of the Company, take copies with a view to examining them and to require the provision of explanations of those books and documents by present or past officers or employees." 52. Paragraph 10 provides:- "If the Company's books and documents are in order and satisfactory explanations are given by the officers or employees (or former officers or employees) for any matters raised by the authorised officer the Minister will be satisfied that there is no cause for concern." 53. Paragraph 11 provides:- "In summary, the invocation in any given case by a Minister of her power under Section 19 to appoint an authorised officer to a Company is a limited step which enables the Minister to investigate the concerns set out in Section (2). The thresholds for invoking this section is low in that the Minister must only be of the opinion that there are "circumstances suggesting" the existence of the various matters in Section 19 (2) I say and believe that a Section 19 appointment is entirely different in nature to that of the appointment of an inspector under Sections 6 , , or of the Companies Act, . Section 19 merely empowers an authorised officer to obtain documents and seek explanations from a defined category of persons in order that the Minister may be apprised of the true nature of the Company's affairs so that she may consider whether further action is appropriate." 54. The Applicants agree to this statement of the law and the powers of the Minister. The Affidavit of Paul Appleby states that the reasons for the Minister acting as she did were set out in a letter of 23rd July, 1998 from the Second named Respondent to the Third named Applicant. The Court has already referred to this letter and it is incorporated at an earlier stage of this judgment (MH2). He avers:- "13. Thus it was made clear immediately on the appointment of Mr. George Maloney as authorised officer to the Applicant companies that the sources of the Minister's concerns were the McCracken Tribunal Report, the Report of authorised officers investigating other companies and the 'on-going ICAI Blayney Inquiry'. It was also pointed out in that letter that 'the step taken is not in the public domain and I trust that your staff and such other persons as is necessary for the authorised officer to seek explanations from will keep thus'. The reports now in my possession are subject to the limitations of Section 21 of the Companies Act, 1990 ." 55. He refers to the importance of Section 21 of the Companies Act, 1990 and to the Minister's Private Secretary, Mr. Padraig O'Conaill's (which is Exhibit MH6 of Mrs. Heffernan's Affidavit) letter which reads as follows:- "The Tanaiste wishes to assure your clients yet again that Section 21 will be fully respected by her and the few officials who will have access to information made available to her authorised officer as part of his forthcoming examination of the books and documents of Dunnes Stores Ireland Limited and Dunnes Stores (Ilac Centre) Limited. In the circumstances she does not see how the "leak" of such information could occur as your clients will have a major role in determining under Section 21 (1) the extent to which the Tanaiste will be free to disclose material to third parties other than those identified in Section (3). Your clients will appreciate that the purpose of a Section 19 examination is to determine what is the factual position. Consequently, the work is to be carried out by her authorised officer offers your clients the opportunity to vindicate their position on this and possibly on other matters which they may feel they have been the subject of unfair comment...." 56. This Court is satisfied that the Applicants herein never gave permission to leak any information. It is clear that the Sunday Times did have a great deal of information which might be regarded as confidential. The reason given was that no evidence was produced by the Sunday Times journalists who always protect their sources. However a similar reason was put forward by the Garda Siochana in the Hanahoe case but the press people had no problem in giving evidence in the case and giving information about the leaks which they had received. He relies on part of a judgment of Laffoy J. of the possible sources of leaks and accepts it is part of the price which the Company's proprietor pays for the benefits of incorporation. Mr. Appleby avers:- "I say that in two recent cases, extracts from reports of authorised officers had been sent to companies which were the subject of these reports and to certain Directors of these companies and following the written consent to the companies involved, to a number of other parties under Section 21 (1) of the 1990 Act. The letter accompanying such extracts reminded the recipients that the contents of the report... "is governed by the secrecy provisions in Section 21 of the Companies Act, 1990 "... I say and believe that in the circumstances where information emanating from the investigation of an authorised officer is disseminated to a number of parties the possibility of such information leaking may arise. However, I say and believe that every step is taken by the Second named Respondent and her officials to ensure that the provisions of Section 21 are observed." 57. He then refers to the memorandum which has already been discussed. It is Exhibit MH8 in the Third named Applicant's affidavit and he says:- "The memorandum was drafted by me (i.e. Paul Appleby), this Deponent, and involved a consideration of whether an authorised officer should be appointed under Section 19 of the Companies Act, 1990 or whether an application should be made to this honourable Court and have an inspector appointed under Section 8 of the Act. As is clear from the memorandum I recommended the appointment of an authorised officer notwithstanding that the scope of Section 19 ... 'is clearly not as wide as a Section 8 appointment'. I say that in making this recommendation I felt that it would be more appropriate to invoke Section 19 as a limited step in order to 'make some progress and.... improve the quality and quantity of information on the Company'. I say that far from showing lack of bona fides or considerations for the First and Second Applicants this memorandum shows the concern of the department to take a course of action which would give the Applicants the opportunity to furnish the information requested while minimising the risk to the Applicant's of attendant publicity." 58. He then proceeds to deal with what are the 'current concerns'. He refers to the fact that this point was raised in the proceedings before Laffoy J. and refers to a letter of the Minister of 23rd July, 1998 to the Third named Applicant and to an affidavit dated 4th September, 1998 in which he averred that:- "The current concerns relate to how a Company which is obliged to act pursuant to the code of company law contained in the Companies Acts, 1963-1990 could have had in place such loose management and financial structures whereby there were not sufficient checks and balances to prevent the kind of behaviour identified in the McCracken Tribunal Report as having been conducted by Mr. Ben Dunne taking place. I shall shortly refer to the other material also placed before the Second named Respondent for a decision by her under Section 19 of the Companies Act, 1990 . That concern is heightened as it is only recently that the First named Applicant has received auditors certificates in relation to the annual accounts for the financial period ended 31st December, 1992 and subsequent financial years. It is part of the obligation of the First named Applicant to lay audited accounts before its annual general meeting in each year. It is a matter of current concern as to how such a delay could have occurred and also as to how the accountancy and management structures now operate and as to whether there are checks and balances in place so as to ensure matters are conducted in accordance with company law." 59. He deposes that:- "Clearly the documentation sought in Items (ii) and (iv) of the First named Respondent's letter of 18th January, 1999 relate to these current concerns." He adds:- "I say that I do not accept that there is any ambiguity in the term standards of corporate governance. Neither do I accept that corporate governance is not a matter in which the Minister has an interest or with which the Minister is concerned. Failures of corporate governance by the Applicant companies allowed the various payments referred to in the schedule of reasons to remain undetected for considerable periods of time and in particular the failure of the operating Company of the Dunnes Stores Group to obtain auditors certificates for several years. As was indicated in his conclusions (page 73) the McCracken Tribunal made the following statement which contains most of the funds diverted from Dunnes Stores Ireland Limited and possibly from other companies within the Dunnes Stores Group. The large majority of payments made by Mr. Ben Dunne have been considered in this report were made without the knowledge or approval of the Board of Directors of Dunnes Holding Company and without the knowledge or approval of his co-shareholders in that Company although such payments were made out of funds which were the property of one or more companies in the Dunnes Stores Group. It was clearly unwise that one person should be given such unsupervised financial control of the affairs of a business the size of Dunnes Stores Group and as a matter of general principle the Company must have some responsibility for the actions of an officer to whom it delegates such wide powers." Under Section 19 (2)(b)(ii) "as stated above, the factual basis of the Second named Respondent's reasons under this heading has not been challenged by the Applicants. These facts have led the Second named Respondent to be firmly of the opinion that there are "circumstances suggesting" that the criteria set out at Section 19 (2)(b)(ii) are fulfilled. In these circumstances the Minister has ample justification for the appointment of an authorised officer and is doing so entirely within her statutory authority". 60. He continues that Mrs. Heffernan argues that the next sub-section alleges that the members of the Company have "not raised any concern with the Second named Respondent and that as the Minister is not in a position to advance the interest of any of the members of the companies in any way the Minister's enquiry is purposeless". Mr. Appleby does not accept this statement. If the affairs of the First named Applicant were conducted with intent to defraud their members or were conducted in a manner which is unfairly prejudicial to some part of its members, the Minister is entitled to exercise her jurisdiction to appoint an authorised officer. 61. This Court is of the opinion that even if the members had stated themselves to be happy, the Minister can, if bona fide, say that she is not happy. He then deals with the question of the group's failure to obtain all of the certificates and argues there can hardly be any objection to furnishing documentation in relation to it and an explanation for the delay to the authorised officer and the failure to comply with its statutory duty is a matter of legitimate concern to the Second named Respondent. It had also been argued that no demand had been made on Dunnes Store (Ilac Centre) Limited. This Deponent says that it will be served in due course. 62. The Second named Respondent in the exercise of her discretion appoints an authorised office to carry out a limited investigation of the books and documents of the Applicant companies and to seek explanations in relation thereto. 63. The existence of other enquiries is not a legitimate objection to the appointment of an authorised officer. 64. This Court accepts that that is so unless there was mala fides. 65. He points out that an authorised officer is entitled to seek explanations in relation to books and documents. Does Section 19 give a right to demand specific documents only or can one demand documents in general terms? It seems to this Court that the answer is restricted to specific documents. 66. He points out that the exhibit MH12 is not a draft of a demand for information as alleged by the Third named Applicant. It is disclosed under the Freedom of Information Act and is in fact part of an advice of Senior Counsel. It is privileged. 67. This Court is satisfied that the Minister must act at the time of the making of the appointment on circumstances and facts known to her then to prove she was right or wrong in making the appointment. The Court is only enquiring into her state of mind at the time of the making of the appointment. 68. Mrs. Heffernan's second affidavit was sworn on the 1st April, 1999 and she refers to the Affidavits of Paul Appleby and Gerard Ryan, already summarised. She points out that in the previous action there had been criticisms of the Minister appointing an authorised officer and refusing to give reasons. However, she points out that Ms. Justice Laffoy held that the Applicants were stymied in their ability to challenge the Minister's decision. The thrust of the previous case was to obtain these reasons. The Applicants were successful in attaining that objective. The instant proceeding constitutes a challenge to those reasons. She sought to clarify various statements contained in the "reasons" given in the letter of 23rd December, 1998. The Minister by failing to clarify her position prevented the Applicants from making any representations in relation to the decision in advance of these proceedings. The Minister is unwilling to define precisely what she means by the term 'corporate governance'. She adds:- "Simply put the Minister appears to be suggesting that the actual concerns of the members are irrelevant to her opinion and its content simply 'not to accept' the points made by Mrs. Heffernan as to the compromise of claims and the professional advice taken by the existing and former members of the Applicant companies." "Her inexplicable failure to furnish reasons at all and her subsequent refusal to clarify ambiguities in these reasons brings her motives into question". She points out that "the alleged shortcomings were a matter of public record". These facts are now notorious. Everything has been investigated, claims have been compromised and the revenue are conducted in an orderly and lawful fashion. She points out that no companies had so much investigation to include the enquiries by the Revenue Commissioners, the Institute of Chartered Accountants, His Honour Judge Buchanan, The Honourable Mr. Justice McCracken, The Honourable Mr. Justice Moriarty. She states that there are no current concerns attached to the governance of the Applicants of the very specific matters mentioned in the Affidavits on behalf of the Second named Respondent the most nearly current concern relates to the delay in filing returns. She says this is entirely understandable in view of the intractable but eventually resolved problems caused by historic issues. It is not capable in and of itself and after it has been dealt with of grounding the invocation of Section of Companies Act, 1990 . 69. She talks of the great assistance that the Applicant companies have furnished to a wide variety of enquiries. 70. I must emphasise this extensive assistance in light of the clear implication in statements made on instructions by Counsel in open Court. This assistance is given without quibble or concealment. "The Applicants believe that these various enquiries mostly under the provision of judicial authorities will be properly and fairly carried out and that the Applicants commercial confidentiality will be respected in every appropriate way". In the events which have taken place it is impossible for the Applicants to have the same faith in the present proposed enquiries. This is so for a variety of reasons including the Second named Respondent's persistent failure to give reasons for her course of action until compelled to do so by Order of this honourable Court and the opaque nature of the reasons then tendered and the refusal to clarify them, the unacceptably broad nature of the enquiry outlined below, the appearance of Section 19 material in the media and the apparent indifference of the Second named Respondent to this. 11. That there is an extensive overlap between the investigations proposed by the authorised officer and other investigations which are being conducted or are in train and borne out by the reliance which the Minister has placed upon the report of investigations which have happened in the past and more extraordinarily by the manner in which the Minister now seeks to adduce in support of her decision evidence which is currently unfolding or has recently unfolded before the Tribunal chaired by Mr. Justice Moriarty. The inclusion of this material by Paul Appleby in his Affidavit can only be for one of two purposes:- (a) to endeavour to bolster the grounds for the Minister's decision after it has been made, or (b) cast further aspersions on the Applicant companies. 71. If the purpose is the former, the inadequacy of the grounds supporting the original decision is highlighted. If the latter the motives of the Minister are called into question." "The unacceptably broad nature of the enquiry is exemplified by the ambiguity and breadth of the notice served by the First named Respondent. I say and believe that it is not sufficient to the First named Respondent to reply that the request is not excessive and to contend that it relates to matters which have already been examined (paragraph 15 of Gerard Ryan's Affidavit). The notice is served under pain of criminal sanction and refers to all payments made since incorporation for which value has not been received. Although the First named Respondent now suggests that it is limited to those which have been brought to the attention of the existing directors and auditors (in the manner suggested by paragraph 16 of Gerard Ryan's Affidavit) this was not what was stated in the notice . Furthermore, there is no distinction in the notice between charitable donations and payments of that sort or the payments for which value has not been received." 72. She then argued "the possibility of information being leaked to the media and under scores the undesirability of appointing an authorised officer in anything other than the most compelling circumstances". She adds:- "I am regretfully driven to the conclusion that the Second named Respondent has misconceived and misconstrued the powers conferred by Section 19 and has done so out of a desire to have an inappropriately broad enquiry under political rather than judicial supervision and in the circumstances where it is apparently impossible to address the question of leaks to the media. The Applicant companies specifically fear that the proposed enquiry will lead to a partial or one sided enquiry with deliberately leaked disclosures which would be damaging to the Applicants and which there is apparently no practical power to prevent." 73. She refers to paragraph 17 and 21 of Mr. Ryan's Affidavit and says it is clear that the investigation "is prompted by a desire to obtain the details of the Price Waterhouse investigation". She says:- "I have already pointed out that the legitimacy of the Applicants' claim to privilege against disclosure of this report has been recognised by Government and the Tribunal of Inquiry chaired by Mr. Justice Brian McCracken. I believe that any attempt to circumvent this privilege is an abuse of the power vested in the Minister." 74. She points out that it is extremely damaging to the day to day business of running Dunnes Stores to have substantial management time and resources diverted to regulatory investigations let alone duplicate investigations. Finally there is the Affidavit of Boyce Shubotham sworn 1st April, 1999 where he said he had several conversations with Mr. Ryan and with Mr. Brady (of the Chief State Solicitor's Office) and offered to meet them. He formed the view that the reason Mr. Ryan rejected this offer was that he wished in effect to begin his appointment by exercising a right to question the Third named Applicant or Mr. Pat O'Donoghue (Financial Director). The Deponent's view is that Mr. Ryan could:- (a) require the production of specified books or documents. (b) once he has specified documents and they have been produced that he could then take copies or extracts from the documents. (c) require certain parties to provide an explanation of the documents so produced, if required. "I on behalf of the First and Second named Applicants wanted to know what specified documents Mr. Ryan sought to have produced. I believe what Mr. Ryan wanted to do was firstly to exercise a right to question my clients and secondly to effect a general trawl through my client's documents. I did not understand him to enjoy either of these powers on foot of a Section 19 appointment. My client's concern as to the nature of the procedure adopted by the authorised officer has been the subject matter of comments in the proceedings before Ms. Justice Laffoy. Because of these concerns I informed Mr. Ryan in a telephone conversation on 6th January that the course he was proposing was not in accordance with Section 19 of the Companies Act, 1990 . Despite my clearly expressed view that the position that Mr. Ryan was adopting was not in accordance with his powers under the Companies Act, 1990 , Mr. Ryan wrote to the Third named Applicant the following day the 7th January and stated inter alia that he wished to meet with 'appropriate officers of Dunnes Stores Ireland Company on Monday 11th or Tuesday 12th January in order:- (i) to establish what books and documents are in the possession of the Company which are relevant to my enquiries." 75. In the view of this Court Section 19 enquiries are very restricted and the powers under Section 19 are correctly stated by Mr. Shubotham and must be exercised in the order in which they are set out above. 76. The Price Waterhouse Report was provided to the various enquiries and conducted by members and former members of the judiciary. 77. This Court has been provided with a copy of the Price Waterhouse Report. However, in view of the matter before this Court based on the pleadings it is not necessary to review the privilege already claimed for it. Also this Court is not satisfied that on the present pleadings it is appropriate to discuss it. Also Laffoy J. takes a similar line. In these circumstances the Court proposed to return the Price Waterhouse Report in its sealed condition and without the Court looking at it at all. If the privilege, is of any said relevance or of any importance the Judge of trial can decide cf. Horgan -v- Murray , [1999] 1 ILRM 257 . 78. There is a Motion dated 9th April, 1999 supported by an Affidavit of Boyce Shubotham dated the same day seeking discovery. The Court is uncertain as to whether this Order is required. 79. The Respondents and Notice Party made a written submission and also the Senior Counsel addressed the Court. Under the heading, "the relief sought by the Applicant", the following paragraph appears in their submission:- "2.01 The relief sought by the Applicants in the Statement of Grounds can be summarised in the following manner. Firstly, there is an attack on the appointment of the authorised officer to the two companies (claims for Certiorari, Prohibition and Injunctive Relief......). Secondly, the Applicants contend that, if contrary to their contention, the appointment is valid, the authorised officer is not entitled to demand admissions or statements which can be used against the Applicants in similar proceedings. In the alternative, it is contended that the Court should declare that information or documents furnished to an authorised officer should not be admitted in subsequent proceedings [claims attacking the constitutionality of Sections 19 (5) and (6) of the Companies Act, 1990 and the declarations for relief (VII)(2)(ix) and (xii) of the Statement of Grounds]. Thirdly, the Applicants contend that, if contrary to their contention, the appointment is valid, an injunction should be granted restraining the Respondents, their servants or agents from imparting information including statements, summaries of affairs to third parties is in breach of Section 21 of the Companies Act ....if some of the relief sustained was advanced by Counsel for the Applicants in the opening submissions on 20th April, 1999 and is accepted by the Respondents. It will be noted that no order (and, therefore, no relief) sought in respect of the demand for documents made by the authorised officer on 18th January, 1999 and if such demand is criticised to support the attack on the appointment of the authorised officer no order is sought to quash it or to restrain the authorised officer relying on it." 80. In discussing the discretion of the Minister, the Court was referred to a dictum of Lord Green in Associated Provincial Picture Houses Limited v. Wednesbury Corporation , [1948] 1 KB 223 at p.229:- "A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'." Laffoy J. in Dunnes Stores Ireland Company v. Maloney found that the Courts are entitled to review the formation of the opinion, which must precede the Minister's decision on the same basis as the Supreme Court held that the opinion which precedes a decision under Section 31 (1) of the Broadcasting Authority Act, 1960 is reviewable in The State (Lynch) v. Cooney , [1982] I. R. 337. Laffoy J. set out the principles by which the exercise of a discretionary decision making power is to be reviewed and also went on to cite the decision of the Supreme Court in East Donegal Co-operative v. The Attorney General , [1970] I. R. 317 and quoted with approval of the judgment of Walsh J. in relation to such a power:- "Which casts upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice and which do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will." 81. It is certainly essential to remember that what is being attacked is the validity of the appointment of the authorised officer which is a decision taken on the 22nd July, 1998. The Court's interest in the validity of that decision by reference to applicable principles of administrative law must make findings as to the circumstances appertaining and the Minister's state of mind at that time . 82. Anything which happened after 22nd July, 1998 can only be admissible or relevant in so far as it clarifies what was, as a matter of probability, in the mind of the Minister. 83. The Court cannot and should not support the deciding authority which use hindsight or retrospective reasoning. The Court must do the best it can to ascertain principles which motivated the Minister to make the Order. 84. This Court rejects the idea of there being unreasonable delay on the part of the Minister to proceed in circumstances of this case. As regards unreasonableness or irrationality, the Court is being referred to , The State (Keegan) v. The Stardust Victims Compensation Tribunal [1986] I. R. 642 in which 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 the rights or duties requires, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision." 85. To succeed in a claim for delay it is normal to adduce evidence of actual prejudice. This seems to be the view of the majority of Irish authorities but Hogan and Morgan, Administrative Law in Ireland has admitted that there is also some minority judicial support for the view that absence of justification for the delay is a ground in its own right. 86. Did the Minister comply strictly with the requirements of Section 19 (2)? In the opinion of this Court, she did. If it said that she flagrantly rejected or disregarded fundamental reason or common sense in making the decision to appoint an authorised officer of the Applicant companies, the answer is that she did not. 87. The problem throughout this case has been that the Applicants are extremely suspicious of the Minister's motives and her agenda. These suspicions may be justified. However, one cannot just wave a sword about suspicion or innuendo. If the Court is to act, then the sword must draw blood. In the present case, there are implied criticisms that one might even find hints of wrongdoing but there is no specific charge or evidence that the Minister acted mala fide and/or vexatiously. 88. The first authorised officer was Mr. Maloney and Laffoy J. has held that the demand for documents made by him are both excessive and unreasonable. The authorised officer is perfectly entitled to make a demand for documents but what Laffoy J. found was that the demand he made was both excessive and unreasonable and in the nature of a "trawl". Undoubtedly, Section 21 of the Companies Act, 1990 was relied upon by the Minster as a reason for not providing the information which led to the decision of Laffoy J. It is conceded that in the Affidavit of reasons as a result of a case sworn on 27th November, 1998 by Mr. Appleby not all of the reasons therein set out were the reasons which would have been the subject to Section 21 . 89. The Applicants undoubtedly want the Court to draw inferences from those facts. They say that the Minster firstly hid behind Section 21 and wouldn't give any reasons until it was required by the Court to do so and gave reasons only two of which would possibly be blocked by Section 21 of the Act . The Applicants asked the Court to imply from those facts that the appointment of the authorised officer was invalid. 90. The decision of the Minister was made on 22nd July, 1998. She wrote a letter to Mrs. Heffernan for the Applicants on 23rd July, 1998 as follows:- "This appointment has been made only after lengthy and detailed consideration and has involved not only staff from my department and the public service but also independent legal advice. I have had presented to me the McCracken Tribunal report to which reference was made in our correspondence of September 1997 and to the reports of authorised officers investigating other companies. Section (2) are pointers which I felt it necessary to make in that regard were similarly motivated by my responsibilities under the Companies Act, 1990 and to the powers conferred on me thereby. The reports are subject to the very strict limitations to Section 21 of the 1990 Act and the disclosure of such information in the circumstances of the correspondence initiated by you is not contemplated by the Act . In addition, the ongoing ICAI Blayney Inquiry has provided further material to add to the information and advice which has been before me set out in this paragraph." 91. It is clear that the Minister is not merely using reports which were subject to the strict limitations of Section 21 . At that time of course the Minister had been advised by Counsel that she had no obligation to give reasons in any event and this Court accepts that Ms. Justice Laffoy established Irish law by declaring that reasons are required under Section 19 . However, before that decision, Butterworths "Companies Acts, 1963-1990"cited Norwest Holst v. Secretary of State for Trade [1978] 3 All E. R. 280 and says:- "The Minister is not required to give reasons for the investigation and need only specify in general terms the ground in S.19 (2)." 92. Laffoy J. does not seem to be admitting that reasons have to be given in every case but certainly in Section 19 cases, she has so decided. 93. There was evidence before this Court that advice was given to the Minister that she might appoint an authorised officer to two other companies and that in the very restricted sense she might do the same in relation to the Applicants. 94. However, she was also warned that it was likely to be challenged. The view was expressed as a result of the investigations by an authorised officer it might be necessary to proceed to a full inspectorship. 95. In this case it would with hindsight, in the opinion of this Court, have been wiser to go the route of a inspectorship. Mrs. Heffernan vehemently states on at least two occasions in her Affidavits that the Applicants would oppose the inspectorship. However, Mr. Hardiman, S. C. has very properly resiled from that position. He has stated that his client would welcome an inspectorship. An inspectorship will of course provide further publicity but although it is stated that Companies are at a great loss no evidence whatsoever has been adduced other than that a lot of people will have to devote their time and energies to finding documents. 96. Both parties are agreed as to the limits of the powers of an authorised officer. He is only entitled to seek the production of specified documents. For practical reasons, these documents are produced to take copies of them or extracts from them and to require present or past officers or employees to provide an explanation on any of them. That is clearly submitted by Mr. Fitzsimons, S. C. on behalf of the Minister. Both authorised officers acceded their powers by looking for meetings for the purpose of interrogation which would certainly be more appropriate to an inspectorship. An authorised officer is very restricted. Firstly, he must seek specified documents, then he can make copies or extracts from them and he can thirdly require officers or employees present or past to provide an explanation of any of them. That is the limit of what he can do and they must be done in that order. In this case, the Applicants have not requested quashing of the acts of the authorised officers. However, it is conceded by Mr. Fitzsimons in an oral submission that the Applicants are absolutely correct to say that the authorised officer has no right to seek a meeting before he seeks specified books and documents. If that is absolutely right, he does not seek to contest that proposition at all but the Applicants know this too. They know also that since the authorised officer has no entitlement to proceed in this manner, they are perfectly entitled to decline his request. Alternatively, what they could do or have done, which they chose not to do, is sought to have an order quashing his demand and an injunction restraining him from seeking a meeting about information before he sought books and documents. They chose not to seek such reliefs for various obvious reasons. He knew perfectly well that this demand was taking place as it did by Mr. Ryan just after Ms. Justice Laffoy had quashed Mr. Maloney's demand for which relief was sought, was an attempt to engage Dunnes Stores to try to work out a solution to this issue and to agree books and documents that the authorised officer could see, to quote Mr. Fitzsimons:- "As I say, I do not seek to suggest there was an entitlement under the Act to seek a meeting. I do not suggest that for a moment that somehow or another this action constitutes (if this is the case) a proper motive which somehow or other claims the decision made back on 22nd July, 1998 to appoint the authorised officer is genuine and absolutely unsustainable. If Dunnes Stores had held this meeting when Mr. Ryan looked for it, it could well have resulted in a confining of the demand for documents. The documents sought could have been agreed, who knows, but in any event it did not take place. No relief is sought in respect of it and it is a non issue in this case. Nor, if the demand itself is not intact, no relief is sought in respect of it or could have been. The demand itself generally is a non issue in this case." 97. There was much discussion about articles which appeared in the Sunday Times. They are merely hearsay. As already mentioned, there was no effort made by either side to show where the information came from and it was admitted that the information of other authorised officers into other companies were, with the consent of those companies, released to third parties. Section 21 does not give the sort of protection to companies which might be thought desirable. It would be impossible for the present Section to prevent the possibility of a leak. It was submitted that the Court should not look at the newspaper reports. However, the Court admitted them "de bene esse". However, on mature reflection, the Court is satisfied that they were not proven apart from being presented to the Court and the Court should disregard them. 98. The Applicants also contended that the reasons set out in Mr. Appleby's Affidavit of reasons on 27th November, 1998 were not the actual reasons and that they were created after Ms. Justice Laffoy gave her decision in the earlier judicial review proceedings on 18th November, 1998. An assertion to this effect was made in opening submissions on behalf of the Applicant. Objection to it was made on behalf of the Respondents who argued that the matter had not been pleaded. The Applicants refused to apply to amend the Statement of Grounds and contended that it was covered particularly by the allegation that there was mala fides. The Court allowed the Applicants to make that case. 99. The Court is satisfied that there is no evidence before it to justify a finding of mala fides. There is also no evidence that the Minister abused her powers by appointing an authorised officer. A Company may feel harassed and suspect hidden agendas but, as Laffoy J. said in the Dunnes Stores Ireland Company v. Maloney case:- "The Minister is the regulator of companies and given that the privilege of incorporation is open to abuse in a myriad of ways, the Minister's investigative role is essential." The Section 19 procedure is an essential administrative and fact-finding mechanism by which the Minister may exercise her role as statutory regulator to use her power to give directions to a company to produce specified records and she is of the opinion that there are circumstances addressing the various matters set out in Section 19 (2). 100. The Applicants also claimed that the appointment must be seen with regard to the newly emerging doctrine of proportionality. If a Minister decides to appoint an authorised officer, it is in the criteria set out in Section 19 of the 1990 Act, that the appointment, per se, cannot be disproportionate or inappropriate as the Minister has made her appointment in the precise circumstances envisaged by the Act . The mere fact that many of the points have been already investigated does not, in itself, prohibit the Minister from appointing an authorised officer, unless there is proven mala fides. The Court also rejects the arguments based on the alleged legal principal of "duplication of process" and double jeopardy [see. In re. The National Irish Bank Limited, unreported Kelly J., 19th March, 1999 ]. 101. As has been stressed, the Minister has to make her decision because there are circumstances "suggesting" various matters which are unsatisfactory in relation to the administration of the Applicant companies. 102. It would be unreasonable to put parameters to the ambit of their Inquiry as the books and other documents produced may suggest the need for clarification or explanation of directors or employees past or present. However, the Court has already indicated that the authorised officer has no authority or right to interview or interrogate members of the Company. An inspector can do it, an authorised officer could not. 103. The time allowed for complying with a request must be reasonable and, in the view of this Court, the amount indicated by Mr. Ryan in regard to the magnitude of the task he had set the Applicants was too short. There may well be reasons why an authorised officer should not allow a long time but it must, at all times, be reasonable in the particular circumstances of the particular case. The questioning or interrogation and discussion with the directors and the employees is ultra vires the powers of an authorised officer until after he has seen and copied documents. The authorised officer made it plain that had there been co-operation with him, he would have dealt with the question of time and probably have extended it. However, that is not the correct approach. He must confine himself to the powers, by their nature invasive, given to him by the Section. 104. In their written submission, the Respondents have shown that there is some doubt about the position of Mrs. Heffernan in regard to some companies and made the point from the evidence of Mrs. Heffernan and her daughter, Dr. Ann Heffernan, it is not clear who are the relevant members of each corporate entity. As from an example indicated in Dunnes Stores (Ilac) Centre Limited, the only two listed shareholders were David McCormick and Francis Condon. So, it may not be correct to say that the members of the relevant companies are restricted as suggested by Mrs. Heffernan. The mere fact that she and her brother compromised all claims against their allegedly offending brother, Ben Dunne, is not a matter of itself which would inhibit the Minister from exercising her powers. It also is not clear who are the members of the relevant Companies as no documents were produced. 105. It is pointed out also by the Respondents that if there is not any evidence that the members, as defined by the Companies Act, 1963 are of the view which Mrs. Heffernan states or is there any evidence that she has authority to speak on their behalf. The Court does not accept that if all the members were content not to have an authorised officer, the Minister thereby would be precluded from acting. It is certainly a matter which she should take into her consideration but she must always revert to the words of the Section about "the circumstances suggesting". 106. In all the circumstances, the Court is satisfied that Gerard Ryan was properly appointed by the Minister but that his demand was not specific enough; did not give sufficient time to allow compliance with it; he based it on a precondition requiring a meeting which he was not entitled to do. 107. In all the circumstances, even though it has not pleaded and will require an amendment the Court would strike down the purported demand by the said authorised officer for the reasons aforesaid. The Minister's powers must be strictly construed and an authorised officer must comply with the requirements of the acts and not stray beyond these powers. 108. The appointment was satisfactory but he acted ultra vires his powers. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII