Maigueside Communications Ltd. v. Independent Radio and Television Commission [1997] IEHC 125; [1998] 4 IR 115 (18th July, 1997)

JUDGMENT of Mrs. Justice McGuinness delivered the 18th day of July, 1997 The first named Respondent ("the Commission") was established under Section 3 of the Radio and Television Act, 1988 for the purpose, inter alia, of entering into contracts in accordance with the provisions of the Act for the provision of local sound broadcasting services. The four Applicants in these proceedings are separate applicants for a contract to provide local sound broadcasting services in the Limerick area. The Applicants' proceedings against the second named Respondent, the Minister for Energy and Communications, were dismissed by Order of this Court (Kelly J.) on the 6th day of May, 1997. The Commission had previously contracted with a company called Radio Limerick One Limited to provide sound broadcasting services in the Limerick area but this contract was terminated by the Commission in 1996. The history of this matter is fully set out in the judgment of the Supreme Court (Keane J.) in the case of Radio Limerick One Limited -v- Independent Radio and Television Commission [1997] 2 ILRM 1, and is irrelevant to the present proceedings save that it gave rise to the position where the Commission sought to enter into a new contract for the provision of sound broadcasting services in the Limerick area. 1. The statutory provisions relating to the making of applications for sound broadcasting contracts and the manner in which they are to be considered by the Commission are set out in Sections 5 and of the 1988 Act. The process to be carried out by the Commission under Sections 5 and begins by the Commission inviting expressions of interest in the securing of contracts for sound broadcasting services. Areas for local sound broadcasting services are specified by the Minister for Communications having regard to the availability of radio frequencies. The next steps to be taken by the Commission are set out in Section 5 sub-sections 4, 5, 6 and 7 of the 1988 Act as follows: "5(4) The Commission shall, subject to the provisions of this Act , invite applications for a sound broadcasting contract for the provision of a sound broadcasting service in each area specified by the Minister under sub-section (2) and, subject to the provisions of this Act , may enter into such contracts. (5) Where the Commission invites applications for a sound broadcasting contract for the provision of a sound broadcasting service it shall by public notice specify the area in relation to which the sound broadcasting service is to be provided pursuant to such contract and by such notice shall invite persons interested in providing such a service to apply for such contract. (6) Having regard to the findings of the Commission under sub-section (1) the Commission may, in considering applications for the award of a sound broadcasting contract, place greater emphasis on one or more of the criteria specified in Section 6 (2) of this Act and whenever it is the Commission's intention to so do it shall specify such intention to each person who has indicated his intention as being an applicant for a contract. (7) Every notice under sub-section (5) shall - (a) be published in at least one national newspaper, and where appropriate, in one local newspaper circulating in the area to be served; (b) specify the procedure to be followed in order to make an application; (c) specify any other matters which appear to the Commission to be necessary or relevant. Section of the 1988 Act sets out the manner of determination of applications for the award of sound broadcasting contracts as follows: "6(1) The Commission shall, in accordance with the provisions of this Act , consider every application for a sound broadcasting contract received by it pursuant to a Notice under Section 5 (5) for the purpose of determining the most suitable applicant, if any, to be awarded a sound broadcasting contract. (2) In the consideration of applications received by it and in determining the most suitable applicants to be awarded a sound broadcasting contract, the Commission shall have regard to - (a) the character of the applicant or, if the applicant is a body corporate, the character of the body and its directors, manager, secretary or other similar officer and its members and the persons entitled to the beneficial ownership of its shares; (b) the adequacy of the expertise and experience and of the financial resources that will be available to each applicant and the extent to which the application accords with good economic principles; (c) the quality, range and type of the programmes proposed to be provided by each applicant or, if there is only one applicant, by that applicant; (d) the quantity, quality, range and type of programmes in the Irish language and the extent of programmes relating to Irish culture proposed to be provided; (e) the extent to which the applicant will create within the proposed sound broadcasting service new opportunities for Irish talent in music, drama and entertainment; (f) the desirability of having a diversity of services in the area specified in the notice under Section 5 (5) catering for a wide range of tastes including those of minority interests; (g) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in respect of which a sound broadcasting contract has been awarded under this Act ; (h) the desirability of allowing any person or group of persons, to have control of , or substantial interests in, an undue amount of the communications media in the area specified in the Notice under Section 5 (5); (i) the extent to which the service proposed - (i) serves recognisably local communities and is supported by the various interests in the community, or (ii) serves communities of interest, and (j) any other matters which the Commission considers to be necessary to secure the orderly development of sound broadcasting services." 2. In accordance with this statutory framework the Commission in the latter months of 1996 sought expressions of interest in securing the contract for the Limerick area. It appears that they received expressions of interest from some twenty persons or groups. In accordance with Section 5 (4) the Commission in January of this year by public advertisement sought applications from persons or bodies wishing to secure a sound broadcasting contract for the provision of a local sound broadcasting service in Limerick City and county. The advertisement stated that further information and a guide to submissions necessary to complete applications would be available on request from the Commission's offices and that the closing date for applications was the 7th March, 1997. 3. The guidelines for the manner in which applications should be presented to and dealt with by the Commission were sent to all intending applicants. This was a substantial and detailed document headed Guide to Submissions Limerick City and County. So far as it is material it was divided into five parts: 1. Introduction; 2. Determination of applications for award of the contract; 3. Format of applications; 4. Outline of the applications; 5. Application procedure. 4. The introduction indicated that applications were being sought in accordance with Section 5 of the Act . Part 2 of the document indicated that in determining the most suitable applicant for the award of the sound broadcasting contract, the Commission was obliged to have regard to the suitability of applicants pursuant to the Act and in particular Section 6 thereof. Matters to which the Commission would have to have regard were then set out. 5. Part 5 of the Guidelines specifying the application procedure so far as it is material was as follows: "The following procedures will operate in respect of each application:- The decision making process will be a two stage process. Stage 1: the first stage will involve the Commission in making an individual assessment of each written submission, with a view to qualifying suitable applications for the second stage. The decision as to which applicant groups qualify for Stage 2 is entirely within the discretion of the Commission and no applicant group has a right to make an oral presentation unless selected to do so by the Commission. Stage 2: applicant groups who have not been eliminated during stage 1 will be invited to make an oral presentation at a public hearing, which will be held in Limerick, in April. A decision will be taken by the Commission following Stage 2 of the application process and this decision will be conveyed to each applicant." 6. The Commission received nine applications in all. On 10th March, 1997 the Commission issued a press release listing the nine applicant groups. The press release went on to say: "The decision making process will be in two stages 'the first stage will involve the Commission in making an individual assessment of each written submission, with a view to qualifying suitable applications for the second stage. This will be finalised by the Commission at its meeting on Thursday the 20th March', Michael O'Keeffe, IRTC Chief Executive, said . 'Applicant groups who have not been eliminated during Stage 1 will be invited to make an oral presentation at public hearings, which are scheduled to take place in the Castletroy Park Hotel, Limerick, on Thursday and Friday 3rd and 4th April next. The Commission hopes to make its decision by the end of April' Michael O'Keeffe concluded" 7. Copies of all the nine applications were sent to each member of the Commission and a meeting was held on the 20th March, 1997 for the purpose, inter alia, of selecting a short list of applicants who would proceed to Stage 2 and who would make an oral submission. It appears that a quorum of five members of the Commission attended this meeting. In addition a further member made his views known in writing and one other member (who was at the last minute prevented by outside circumstances from attending the meeting) made his views known in a telephone conversation with Mr. Michael O'Keeffe, Chief Executive of the Commission. At the meeting a short list of four applicants, which did not include any of the four Applicants in these proceedings, was selected by the Commission. 8. On 21st March 1997 the Commission issued another press release headed "Four applicants for Limerick licence invited to public hearings in early April". This press release was marked "for release 2.00 p.m. Friday 21st March, 1997". It announced the names of the four short-listed groups and asked them to attend a public hearing at Castletroy Hotel, Limerick on Friday 4th April, 1997. The press release quoted Mr. Michael O'Keeffe as saying "the Commission received nine applications for an independent radio licence for Limerick. The decision making process for this licence is in two stages. The first stage involved the Commission in making an individual assessment of each written submission with a view to qualifying suitable applicants for the second stage. This process was completed by the Commission at its meeting yesterday and resulted in four applicants qualifying for the second stage. We have invited these applicants to attend a public hearing on Friday 4th April next." 9. The Chief Executive, Mr. O'Keeffe, who was cross-examined on his affidavit by Counsel for the Applicants, explained that he was anxious to notify the unsuccessful applicants before the issue of the press release. He accordingly arranged for his secretary to telephone each of those groups to notify them that they would be receiving a fax from the Commission. He then sent each unsuccessful group by fax and subsequently by post the following letter: "Thank you for your recent application in respect of the licence to operate a sound broadcasting service in the Limerick City and County area. At its meeting on 20th March, 1997 the Commission decided to qualify four applicants for the second stage of the application process. I regret to inform you that your application did not qualify for the next stage. For your information, the qualifying applications were as follows." and the letter proceeds to list the four qualifying applications. 10. The unsuccessful groups were very naturally disappointed. They had spent considerable time and money in putting in their applications. In an affidavit on behalf of the Applicants sworn on the 8th May, 1997 Mr. Patrick Fitzgerald stated as follows: "As adumbrated in my grounding affidavit, Mr. Tom Nolan advised Mr. O'Keeffe in a telephone conversation that the disqualified applicants were most disgruntled and required reasons for the said Respondents' decision. Mr. O'Keeffe informed him that no further discussion about the matter would be entertained and that if the unsuccessful Applicants wished to litigate, the proceedings would be most vigorously defended. Since swearing that Affidavit, I am informed by Mr. Michael Richardson, one of the Applicants herein, that in a telephone conversation with Mr. O'Keeffe on 21st March last, he specifically requested the reason for the first Respondent's decision to deny the Applicants a hearing and that Mr. O'Keeffe categorically and emphatically informed him that there was no question whatever of furnishing any reasons for the said Respondent's decision." 11. These averments which are, of course, hearsay were put to Mr. O'Keeffe in cross-examination. He did not recall any telephone or other conversation with 12. Mr. Richardson and denied that any such took place. He did not recall a telephone conversation with Mr. Tom Nolan but did recall meeting him at a lunch in Dublin early the following week. Mr. Nolan had told him that people had been very disappointed and had asked why his group had not been successful. In reply Mr. O'Keeffe had explained the selection procedure to him in some detail, but went no further. Mr. Nolan then told him that they were considering their legal position and that he might be getting a letter. 13. On the 2nd April, 1997 the solicitors for the Applicants wrote to Mr. O'Keeffe as follows: "Dear Sir, We act on behalf of the above named clients and we wish to put you on notice that we will be applying tomorrow morning to the High Court for a judicial review to quash the decision of the Commission communicated to our clients by letter dated the 21st March, 1997 refusing to consider further their respective applications for a sound broadcasting licence in the Limerick City and County area. In addition to and inter alia with other reliefs our clients will be seeking to prevent the Commission from making any determination or award in favour of any applicant for such a licence. We understand that Mr. Tom Nolan of New Limerick FM Limited informed you last week that our clients were very unhappy at the procedures adopted by the Commission in refusing to consider further each of their applications for a sound broadcasting licence in the Limerick City and County area. We are further instructed that Mr. Nolan informed you that legal advice was being sought with a view to challenging the validity of the procedures adopted by the Commission regarding the applications for such broadcasting licence." 14. On 3rd April, 1997 the Applicants obtained leave from this Court (Moriarty J.) to issue judicial Review proceedings against the Respondents. The Applicants' original statement of grounds ranged very widely, but the learned Moriarty J. limited the grounds to those numbered 11(C)(E)(F) and (G) in the application, as follows: "In making the decision not to consider further the applications of the Applicants, the first Respondent acted unlawfully, unreasonably and capriciously and erred and misdirected itself in law and its position was procedurally irregular, ultra vires and void in that it:- (c) failed to give any or any due or adequate consideration to the applications of the Applicants or any of them. (e) failed to give any or any reasons sufficient to enable the Applicants or this honourable Court to ascertain whether the powers of the said Respondents had been validly or lawfully exercised or exercised in accordance with the requirements of natural and constitutional justice; (f) failed to accord to the Applicants a fair hearing or fair procedures; (g) failed to have any or any due or proper regard to the Applicants' legitimate expectation that, subject to their applications compliance as to form, content and substance with the published guidelines, they would be considered pari passu with those of all other applicants." 15. During the course of the proceedings the Applicants sought an Order for Discovery and affidavits of discovery were sworn. In particular the Applicants sought discovery of the applications of the four applicants successful in being selected for the second stage, in particular so that these might be studied and compared with the Applicants own applications by their proposed expert witness, Dr. Colm Kenny. This discovery was refused by this Court and on appeal was also refused by the Supreme Court. In a succinct judgment delivered on the 10th June, 1997 Barron J. stated (at page 5 of the judgment): "The Applicants submit that the Commission had no power to exclude them from Stage 2 provided that their applications qualified them as proper applications within the provisions of Section 6 (2) of the Act . They submit that they did so qualify and they seek discovery of the successful applications to show that the Commission could not rationally have come to a decision that they did not so qualify . The basis of this submission is to be found in the use of the word 'qualifying' in that part of the application procedure relating to Stage 1. It can be seen therefore and was accepted by Counsel that the Applicants' case relies not upon any statutory provision but upon the wording of the guidelines. Taking the sentence in which the word qualifying appears on its own, there is no ground for this submission. It refers merely to those applicants for Stage 2. However, taking the entire of this part of the guidelines as a whole, it is quite clear that such is its meaning, that is to say that the word qualifying applies to those who are selected as qualifying for Stage 2. The Applicant's submission must be rejected. They had no right to be allowed to enter Stage 2 merely because their applications reached a particular level, if in fact they did. The objection of the Applicants to their exclusion is in reality a challenge to the decision of the Commission. That is not open to them. As the grounds and principles upon which leave to seek judicial review have been given indicate, it is the decision-making process and not the decision itself which is challenged or open to challenge. It follows therefore that the applications are not relevant documents to any issue arising in these proceedings". 16. When the Judicial Review proceedings came on for hearing before this Court, Mr. Callan, Senior Counsel for the Applicants, submitted that there were two questions before the Court: firstly, whether fair procedures were employed by the Commission at the stage of short listing the applicants qualifying for Stage 2, and secondly, whether or not the Commission were at fault in not giving the Applicants reasons for their failure to qualify for Stage 2. This summary of the Applicants' case is in conformity with what is set out by 17. Barron J. in his judgment of 10th June and is, indeed, the nub of the case. Before considering the two questions set out above and the law applicable to them, however, I feel that I should refer briefly to what appears to be a related claim made by the Applicants and which appears in sub-paragraph (G) of the statement of grounds for judicial review. This claim is that, because in the majority of previous similar competitions for sound broadcasting contracts all applicants were granted an oral hearing, the Applicants have a legitimate expectation that each of them should have been granted an oral hearing provided their applications were proper applications under Section 6 of the 1988 Act, and were not defective in some obvious way. 18. In the first place, this claim of legitimate expectation can have little basis in fact. While it is admitted by the Commission that in many, though not all, previous competitions all applicants obtained an oral hearing, it was made abundantly clear from the beginning that such would not be the case in this competition. As I have already pointed out, the guidelines sent to all applicants clearly set out the two stage process and stated that: "The decision as to which applicant groups qualify for stage 2 is entirely within the discretion of the Commission and no applicant group has a right to make an oral presentation unless selected to do so by the Commission ." 19. The press release issued on 10th March, 1995 when all nine applications had been received, stated: "The First Stage will involve the Commission in making an individual assessment of each written submission with a view to qualifying suitable applications for the second stage .... Applicant groups who have not been eliminated during Stage 1 will be invited to make an oral presentation at public hearings...." 20. The Applicants were well aware of this position and indeed in a letter from New Limerick FM to its investors dated 18th March, 1997 Mr. Tom Nolan stated: "We have submitted our written application which was the first stage of the process. I understand there were nine submissions including ours and the Commission are currently assessing these with a view to selecting some to go forward to Stage Two, which will be in the form of oral hearings to take place in Limerick around April 3rd or 4th. The Commission are expected to announce the names of those selected for Stage 2 after their monthly meeting this Thursday March 20th. With the help of Caimin Jones and Joe Moreau among others, I have put a very well focused submission together for Stage 1 so I am confident that we will be selected for Stage 2. However, we cannot be sure, of course, until Friday at which stage I will update you." 21. Even if the Commission had at all times previously granted oral hearings to every applicant, that does not in itself create a legitimate expectation that all future competitions will be run in the same way. In Egan -v- Minister for Defence and Others (unreported 24th November, 1988) the learned Barr J. surveyed the doctrine of legitimate expectation in this jurisdiction. In that case the Plaintiff who was an officer in the air corps sought early retirement to take up a civilian post. He claimed, correctly, that in the past such requests for early retirement by officers had virtually always been granted. Having carefully considered the case law, Barr J. said (at page 15 of his judgment): "In the light of the foregoing commentary on the doctrine of 'legitimate expectation' , I am satisfied that it has no application in the present case. Even if I were to proceed from the premise (which has not been proved) that in 1966 when the Applicant joined the army there was a long established and universally recognised practice that officers of five years standing and upwards who applied to the Minister for permission to retire early were duly given leave to do so and that that practice continued until mid-1988, it would not derogate from the Minister's statutory right to refuse permission on reasonable grounds in a particular case. Such a practice, however firmly entrenched it may have been in the life of the permanent defence force, did not amount to an implied promise or representation (as envisaged by the Chief Justice in Webb -v- Ireland ) made by the Minister to the officer corps of the permanent defence force that permission to retire would be granted by him in every case as of course." 22. I consider that the dictum of the learned Barr J. is equally applicable to the circumstances of the present case. 23. In any event, it seems to me that the claim of legitimate expectation is another form of the submission made to the Supreme Court in the discovery application in this case - that the Commission had no power to exclude the Applicants from Stage 2 provided that their application qualified them as proper applications within the provisions of Section 6 (2) of the Act . That submission was categorically rejected by Barron J. in his judgment of 10th June, 1997 and his decision is, of course, binding on this Court. While, as the learned Barron J. points out, the meaning of the Commission's description of the two stage procedure is quite clear, it seems to me that part of the difficulty of the Applicants may have been caused by the use of the word "qualifying" in phrases such as "with a view to qualifying suitable applications for the second stage". It appears to me that what is really meant is "with a view to selecting suitable applications for the second stage" as essentially what was being carried out by the Commission was a selection procedure for a short list such as is very generally carried out in competitions both for contracts and for employment in various posts. The use of the word "qualifying" in this phrase is, in my opinion, a rather strange and very possibly incorrect use of the English language and may have created a wrong impression in the mind of the Applicants. However, when a description of the two stage application procedure is read as a whole its meaning is perfectly clear. 24. I now return to the two main points put forward by Mr. Callan, Senior Counsel, on behalf of the Applicants. The two points are in essence inter-connected. The Applicants can at present put forward no concrete or actual evidence of unfair procedures by the Commission in making their selection of the four applicants who were to proceed to stage 2 (other than their contention that all applications should have been granted oral hearings). However, they submit that the refusal of the Commission to give them any reasons for their failure to be selected for stage 2 in itself prevents them from knowing whether the procedures employed by the Commission were fair or unfair, and this effectively denies them the remedy of challenging those procedures before this Court. 25. In making this submission Mr. Callan relies in particular on the case of International Fishing Vessels Limited -v- The Minister for the Marine [1989] IR 149. In that case the Applicant company had sought a sea fishing licence from the Minister for the Marine. The application was refused and no reasons for the refusal were given. The applicant's solicitors immediately sought for detailed reasons to be furnished in writing. The Minister replied as follows (as set out in the head note to the case): "The Minister for the Marine has adjudicated on your client's application for sea fishing boat licences; prior to his arriving at a decision, your client was afforded ample opportunity to make representations. The Minister does not feel, given the circumstances of these applications, which are well known to your client, that he is obliged either to enter into further discussions either by way of oral hearing or give reasons for his decision. The Minister, as a matter of policy, does not give reasons for the manner in which he exercises his discretionary power; neither is he obliged, under the relevant legislation, to do so." 26. The learned Blayney J. held, in granting the orders sought by the Applicant, that in taking a decision of such crucial importance for the Applicant the Minister was under a duty to act fairly and judicially and that the performance of such duties was subject to judicial review. The provision of reasons by the Minister was an essential pre-requisite to ensure fairness of procedures in the exercise by the Applicant of such right to Judicial Review. The learned judge also held that on the facts the Respondent's failure to provide reasons was manifestly unfair since if the reason for refusal was non-compliance with particular conditions but such conditions were not specified or identified by the Respondent then the Applicant was thereby deprived of any opportunity of complying with those conditions so as to be in a position to re-apply for and obtain a licence. 27. At page 155 of the report the learned judge states: "It is common case that the Minister's decision is reviewable by the Court. Accordingly, the applicant has the right to have it reviewed. But in refusing to give his reasons for his decision the Minister places a serious obstacle in the way of the exercise of that right. He deprives the applicant of the material it needs in order to be able to form a view as to whether grounds exist on which the Minister's decision might be quashed. As a result, the applicant is at a great disadvantage, firstly, in reaching a decision as whether to challenge the Minister or not, and secondly, if he does decide to challenge it, in actually doing so, since the absence of reasons would make it very much more difficult to succeed. A procedure which places an applicant at such a disadvantage could not in my opinion be termed a fair procedure, particularly where the decision which the applicant wishes to challenge is of such crucial importance to the applicant in its business...... The giving of reasons by the Minister could in one case be of particular importance as it would enable an applicant to meet the grounds on which the licence had been refused and, having done so, reapply." 28. Mr. Callan went on to refer to a number of other cases ranging from Dunleavy -v- Irish Land Commission [1952] IR 86 and the 1956 case of State (McGeough) -v- Louth County Council reported at 107 ILTR 13 to the recent decision of the learned Carroll J. in Navan Tanker Services Limited -v- Meath County Council and others (unreported 13th December, 1996). 29. I do not think that I would be doing Mr. Callan's learned and thorough submissions an injustice if I summed up the purport of the cases to which he referred me as that public bodies, and in particular statutory bodies such as the Commission, must act fairly and judicially in making decisions, and that they must also act openly (or what is now so frequently referred to in political circles as transparently) by making clear the reasons for their decisions, at the very least when they are requested to do so. 30. He submitted that the minutes of the Commission's meeting of 20th March, 1997 contained a bare record of the decision taken to select the four successful applicants for Stage 2 - despite the fact that the Commission's own standing orders for Regulation of Meetings of the Commission state at paragraph 3(b) that: "Minutes shall provide an extended record of the discussions which take place, reflecting the thrust and tenor of these discussions, as well as providing a record of decisions reached." 31. No reasons whatever for the rejection of the Applicants' applications appear in the minutes, nor were any given by Mr. O'Keeffe other than a statement in his affidavit sworn the 10th April, 1997 that the four applicants selected for Stage 2 were of a higher standard than the Applicants' applications and that the decision reached by the Commission was a matter of judgment within the expertise of the Commission. Without reasons being given, the Applicants could not judge whether the decision of the Respondents was taken rationally and fairly. 32. On behalf of the Respondent Mr. Hardiman, Senior Counsel, argued that decision making bodies, even where they were statutory bodies, were by no means always required to give reasons for their decisions. The procedure of two stage selection, with consideration of all the applications by each individual member of the Commission, was a perfectly reasonable and fair one, and the giving of reasons was not only unnecessary but in this type of situation could well be invidious and undesirable. 33. Mr. Hardiman pointed out that in his judgment in the case of McCormack -v- The Garda Siochana Complaints Board and Others (unreported 28th January, 1997) the learned President of the High Court had comprehensively dealt with the question of the giving of reasons by bodies charged, whether by statute or by other public duty, with the making of decisions. 34. At page 17 of his judgment the learned President states: "The rules of natural justice are rules of the common law which are applied in our courts when considering the validity of administrative decisions. It is well established by the courts in England that the rules of natural justice do not require that reasons should be given for administrative decisions ( R -v- Gaming Board for Great Britain [ 1970] 2 QB 417 ) and in England it was considered necessary for Parliament to step in and require that "tribunals" (as defined) should be required to do so (tribunals and Enquiries Act, 1971), whilst in Australia (another common law country) the federal parliament went further and enacted that this principle should be extended to administrative decisions generally (administrative decisions (judicial review) Act, 1977). In this country the Oireachtas has remained inactive in this field. In theory our courts would be free to extend the common law principles of natural justice as they are judge made rules but it would seem preferable that the existence, scope and nature of the duty to provide reasons for an administrative decision should be considered in the light of the constitutional requirement relating to what the courts have termed 'constitutional justice' , rather than as an extension of the common law rules of natural justice. It is now established as part of our constitutional and administrative law that the constitutional presumption that a statute enacted by the Oireachtas intended that proceedings, procedures, discretions and adjudications permitted, provided for, or prescribed by Acts of the Oireachtas are to be conducted in accordance with the principles of constitutional justice (see East Donegal Co-operative Limited -v- Attorney General [1970] IR 317, 341). It follows therefore that an administrative decision taken in breach of the principles of constitutional justice will be an ultra vires one and may be the subject of an Order of Certiorari. Constitutional justice imposes a constitutional duty on the decision making authority to apply fair procedures in the exercise of its statutory powers and functions. If it can be shown that the duty includes in a particular case a duty to give reasons for its decision then a failure to fulfil this duty may justify the court in quashing the decision as being ultra vires. It is not the law of this country that procedural fairness requires that in every case an administrative decision making authority must give reasons for its decisions. Where a claim is made that a breach of the constitutional duty to apply fair procedures has occurred by a failure to state reasons for an administrative decision the Court will be required to consider: (A) The nature of the statutory function which the decision makers carry out. (B) The statutory framework in which it is to be found and (C) The possible detriment the Complainant may suffer arising from the failure to state reasons. To give an example of a possible detriment; if a statute permitted an appeal to the Court from the decision of an administrative authority on a point of law the failure to give reasons for a decision may well amount to a breach of a duty to apply fair procedures if it could be shown that their absence rendered ineffectual a statutory right of appeal. There may also be circumstances in which: (A) No unfairness arose by a failure to give reasons when the decision was made but (B) The concept of fair procedures might require that reasons should subsequently be given in response to a bona fide request for them. Therefore in such cases the Court would not grant an Order of Certiorari (because the decision itself was not an ultra vires one) but it would have jurisdiction to grant an Order of Mandamus directing the decision making authority to carry out its constitutional duty (which the Court had found existed) to provide reasons when asked. Finally there may be circumstances in which the duty to apply fair procedures may not oblige a decision making authority to state reasons for its decisions at the time or after it has made it but which might oblige the authority to explain to an affected person the material on which the decision was based." 35. The learned judge then considers, compares and contrasts earlier cases where it was held that there was a duty to give reasons, including the international fishing vessels Limited case. At page 24 of his judgment he goes on to say: "It seems to me that the issue can largely be determined by considering whether some detriment is suffered by the Applicant by the failure of the Board to give reasons for the opinion which it reached because if no detriment is suffered then no unfairness can be said to exist. There is no appeal (either on a point of law or the merits) from the Board's conclusions following its deliberation on the results of the investigation into a complaint made under the Act. The Board's reasons are therefore not required to make effective any statutory right of appeal. What remains to be considered, therefore, is whether in this case the failure to state a reason in some way renders ineffectual or otherwise prejudices his right to apply to the court for an Order of Certiorari or Mandamus. It was held in the International Fisheries Limited case that the refusal to give reasons deprived the Applicant in the circumstances of that case of the ability to form a view whether grounds existed on which the Minister's decision might be quashed, that the Applicant was therefore placed at a disadvantage and that procedures which produced such a result where constitutionally unfair. But a person aggrieved by a decision has no right to obtain reasons for it merely for the purpose of seeing whether or not the decision maker had erred and I do not think that the judgment in that case is to be so construed. In this case the absence of reasons does not deprive the Court of an ability to exercise its supervisory jurisdiction. This is clear from the nature of the statutory function which the Court has jurisdiction to supervise. There are detailed statutory provisions establishing the procedures to be followed by the Board and the Court is aware therefore of the manner in which the Board reaches an opinion and the nature of the material on which the Board's opinion should be based. In addition the Board in this case has in fact informed the Applicant in the letter of the 30th November, 1995 of the material on which its opinion was based. Reasons are not therefore required to enable the Court to exercise its jurisdiction. In reality they are being sought in this case to enable the Applicant to see whether or not the Board made an error in the carrying out its function and there is no duty imposed on administrative decision makers by the Constitution to comply with the request made for this purpose." 36. Mr. Hardiman went on to refer to a number of other cases including Rajah -v- College of Surgeons [1994] 1IR 384 and Manning -v- Shackleton [1994] 1 IR 397 in which the duty to give reasons is surveyed and it has been held that such a duty does not exist in all cases where administrative decisions are made. He refers in particular to the case of Brandon Book Publishers Limited -v- Radio Telefis Eireann [1993] ILRM 806 in which the learned Carney J. held that the probable effect of broadcasting particular material by a public personality was a matter of judgement within the expertise of and exercisable by Radio Telefis Eireann and that the exercise of such judgement was not reviewable by the Courts. At page 815 the learned judge states: "RTE now accepts that an ordinary member of Sinn Féin may broadcast on a range of subjects but they say that so far as Mr. Adams is concerned his public persona is such that he cannot be divorced in the public mind from advancing the cause of Sinn Féin. As Mr. Colm Molloy put it in evidence ' you cannot separate Mr. Adams from the position he holds'. Whether this is so is a matter of judgment. It is a matter of judgment in relation to image and the projection of fame. It is a judgment in relation to public persona. It is a judgment in relation to the probable effect of the broadcasting of particular material by a particular voice and public personality and the holder of a particular office. In the first instance it seems to me that greater expertise in relation to making a judgment on these matters must lie with the national broadcasting authority than the Courts. Secondly, it must be asked whether the exercise of such a judgment by the broadcasting authority is reviewable by the courts. On the facts of the case as established on Affidavit with cross-examination of two of the deponents and taking into account the principles of The State (Keegan) -v- Stardust Victims Compensation Tribunal [1987] ILRM 202, I do not see that it is proper for the Court to interfere" 37. Mr. Hardiman also refers to the judgment of the learned Mr. Justice Barr in the case of Mary O'Dwyer -v- James Patrick McDonagh and Others (unreported 14th October, 1996). In that case the Applicant had applied for a senior post in the Limerick Regional Technical College. The interview Board for the post interviewed candidates and the Applicant was not appointed to the post she desired. The Applicant alleged that certain members of the Board had behaved in a prejudicial way against her and sought judicial review of the Board's decision. She claimed that certain matters which apparently militated against her promotion should have been put to her at the interview so as to enable her to answer them. At page 15 of his judgment the learned Barr J. dealt with the matter as follows: "Mr. Matthews (for the Applicant) relied on several judicial authorities in support of his argument including Rajah -v- College of Surgeons in Ireland and Others [1994] 1 ILRM 233 and O'Reilly -v- His Honour Judge Cassidy and Others [1995] 1 ILRM 306. In Rajah (which concerned an procedure which a student college membership had been discontinued for twice failing annual examinations) Keane J. held, inter alia, that 'there is an obligation on bodies which exercise functions of a judicial or quasi judicial nature determining legal rights and obligations to give reasons for their decisions and this requirement may even extend to bodies exercising purely administrative functions'. Rajah's case involved the termination of the student's enrolment with a medical school and the appellant procedure claimed of was quasi judicial in nature involving, as it did, potential loss of career prospects through ultimate graduation from a particular professional institution. The selection Board in the matter under review was not exercising a judicial or quasi judicial function, nor was it determining legal rights or obligations as in this case as envisaged by Keane J. Furthermore, it would be singularly inappropriate to require such a body to give reasons why it favoured the appointment of one particular candidate and not others. The publication of the reasons why one or more members of a selection board believed that a candidate was unsuitable for a particular post would be gratuitously unfair and perhaps offensive to the latter and would serve no useful purpose." 38. It is clear from the judgment in the O'Dwyer case that the learned Barr J. makes a distinction between the exercising of a judicial or quasi judicial function and the procedure whereby one candidate is selected for promotion from a pool of applicants. 39. Applying the law as set out by both Counsel in their submissions to the present case it seems to me that the question which I must decide is whether the Commission, either of its own accord or at the request of the applicants, should have given reasons for its failure to select the applicants' applications for Stage 2 of the procedure. Apart from this question the procedures carried out by the Commission are within the framework of the statute and not inherently unfair. In a process whereby one candidate for a post, as in the O'Dwyer case, or one applicant for a contract, as in the instant case, is to be selected from among a number, a process which consists of the studying of all applications by the members of the selecting body, the making of a short list, and the oral interviewing of those on the shortlist, is a perfectly normal procedure. One must presume that the members of the Commission have been appointed by the Government under Section 3 of the 1988 Act on account of their relevant expertise, and the matter of selection of sound broadcasting contractors is a matter for their judgment provided that they adhere to the procedures and guidelines set out in Sections 5 and 6 of the Act. 40. On considering the case law which was helpfully set out for me by Counsel on both sides, it seems to me that as established in McCormack's case the giving of reasons for a decision made by an administrative body is not in all cases necessary. The court must distinguish between a situation such as obtained in the International Fishing Vessels Limited case where, say, the obtaining of a licence is in theory open to a large number of individual applicants and one particular applicant is refused, and the situation where there is a competition between applicants and one particular applicant must be chosen and all others excluded. In the present case, using the tests set out by the learned President at page 20 of his judgment in McCormack's case, the nature of the statutory function of the Commission is the choosing of one applicant from among a pool of applicants, and the statutory framework is to be found in Sections 5 and 6 of the 1988 Act. The provisions of the Sections were closely followed by the Commission in their procedures and in the guidelines which they issued to applicants. The Applicants have, of course, suffered the detriment which is bound to be suffered by all unsuccessful applicants, that of having put a great deal of time, effort and money into the making of an application which was not successful. This detriment, however, does not arise from the failure to give reasons, but from the actual rejection of their applications. This is not a situation where the statute permits an appeal to this Court from the decision of the Commission and the failure to give reasons would render ineffectual a statutory right of appeal. The remedy of judicial review does not provide an alternative form of appeal against administrative decisions as such. As was said by the learned O'Hanlon J. in deciding a preliminary point in Rajah -v- College of Surgeons [1994] I IR 384 at 388: "I think it is important that the High Court should not be turned into a Court of Appeal from decisions of administrative tribunals generally and that the tendency to invoke the jurisdiction of the High Court by way of judicial review proceedings in every case where a party is dissatisfied with the decision of such tribunal is one that must be resisted." 41. It seems to me on considering the factual background and the whole conduct of the proceedings to date that in essence the Applicants seeks to overturn the decision of the Commission and replace it with a decision in their favour. As was said by the learned Barron in his judgment of 10th June, 1997 at page 7: "The objection of the Applicants to their exclusion is in reality a challenge to the decision of the Commission. That is not open to them." 42. This is not a situation where the Commission should be required to give reasons for its decision and indeed is not a proper situation of the use of the remedy of Judicial Review. 43. Since I have held that the giving of reasons is not necessary in the situation under review it is not necessary for me to decide whether the conversation between Mr. Tom Nolan and Mr. Michael O'Keeffe, Chief Executive of the IRTC and/or the alleged telephone conversation between Mr. O'Keeffe and Mr. Richardson constitute a proper request for reasons for the Commission's decision. The material on which the Commission based its decision and which was before it at all material times was simply the various applications for the sound broadcasting contract. This material had to be considered in the light of the matters set out in Section 6(2) of the 1988 Act and there is no evidence before me to suggest that this was not done. 44. For these reasons I am satisfied that the Applicants are not entitled to the relief which they claim. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII