THE SUPREME COURT

Keane, C.J.
Denham, J.
Murphy, J.
Barron, J.
Murray, J.
161 & 164/99
BETWEEN
DUNNES STORES IRELAND COMPANY DUNNES STORES (ILAC CENTRE) LIMITED AND MARGARET HEFFERNAN
Applicants/Appellants
AND

GERARD RYAN & MINISTER FOR ENTERPRISE TRADE & EMPLOYMENT
Respondents
AND

IRELAND AND THE ATTORNEY GENERAL
Notice Party
JUDGMENT delivered the 8th day of February, 2000. by Keane C.J. [Nem. Diss.]

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On the 22nd July 1998, the second named respondent (hereafter “the Minister”) informed the third named applicant/appellant, who is a director of the first and second named applicants/appellants, that she had decided to appoint an authorised officer to examine the books and documents of the First and second named applicants/appellants pursuant to s.19 of the Companies Act 1990 (hereafter “the 1990 Act”). On the same day, Mr. George Maloney, the nominated officer, also wrote to the third named respondent enclosing his warrants of appointment.

These steps were taken by the Minister following the furnishing to the Taoiseach of a Report by Mr. Justice McCracken as the sole member of a Tribunal of Inquiry appointed pursuant to resolutions of both Houses of the Oireachtas to inquire into payments made to certain politicians or connected persons or political parties by Dunnes Holding Company or any associated enterprises and/or by Mr. Ben Dunne. That report concluded that such payments had been to Mr. Michael Lowry TD and two companies with which he was associated and to Mr. Charles Haughey TD by Mr. Ben Dunne, who was at the relevant time the chairman and an executive director of Dunnes Holding Company. Correspondence then ensued between the Minister and officers of the department on the one hand and the third named applicant on the other hand in which the former expressed concerned that the report in question had disclosed a number of possible breaches of the Companies Acts, 1963 to 1990, and requested the production of various books and documents relating to the first and second named applicants. Although some at least of the books and documents of the applicants were made available in response to

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this request, the correspondence culminated in the letter of 22nd July already referred to in which the Minister said that she was invoking her powers under s.19 of the 1919 Act. The third named applicant asked the Minister in a letter of the 23rd July to indicate the basis of the appointment of Mr. Maloney and, not being satisfied with the response, initiated proceedings by way of judicial review in the High Court seeking to challenge the validity of the appointment. Those proceedings were grounded both on the failure of the Minister to give reasons and also on what was claimed to be a conflict of interest which should have precluded Mr. Maloney’s appointment as the authorised officer. The latter ceased to be an issue when Mr. Maloney retired and was replaced as the authorised officer by the first named respondent in these proceedings.

Those judicial review proceedings were heard by Laffoy J, who, in a reserved judgment, concluded that the Minister was obliged to give reasons for her decision since otherwise the applicants would be entirely frustrated in any challenge they might seek to make to her decision. Although she did not quash the appointment of the authorised officer, Laffoy J did order that the Minister should swear an affidavit setting out in full the reasons for her decision to appoint the authorised officer. The response to that order was an affidavit of Mr. Paul Appleby, the principal of the Company Law Administration Section of the Department of Enterprise, Trade and Employment, sworn on the 27th November 1998, the schedule to which set out what were stated to be the reasons for the Minster appointing the authorised officer.

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The schedule included a statement that the circumstances set out in it:-

“gave substantial cause for concern as to the standard of corporate governance operating in Dunnes Stores Ireland Company... ”

The applicants were dissatisfied with the reasons as thus set out in the schedule to Mr. Appleby’s affidavit. They also claimed that the Minister’s department was disseminating information which it was obtaining from the applicants to the media without the consent of the applicants. In addition, they alleged that the demand made by the first named respondent for the production of documents was unreasonable both in its extent and the time allowed for compliance and that the applicants feared that it would be used as a justification for the criminal prosecution of the applicants and an application for a search warrant pursuant to s.20 of the 1990 Act with attendant unfavourable publicity. In the result, the present proceedings were instituted beginning with an application to the High Court for leave to apply by way of an application for judicial review, for specified reliefs. They can be summarised as follows:-

(1)	Orders of certiorari quashing the decision of the Minister purporting to appoint an authorised officer to examine the books and records of the first and second named applicants and, specifically, quashing the appointment of the first named respondent for that purpose.

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(2)	An order of prohibition or an injunction preventing or restraining the first named respondent from acting as such an authorised officer;

(3)	Declarations that the provisions of s.19(5) and (6) of the 1990 Act are invalid having regard to Articles 38.1 and 40.1 of the Constitution;

(4)	A declaration that s.19(6) of the 1990 Act does not permit the use of statements made by a person in evidence in any criminal prosecution against that person;

(5)	A declaration that no books or documents or information obtained by the first named respondent may be given or communicated to any person except pursuant to s.21 of the 1990 Act and an injunction restraining the respondents from communicating to any person such material.

(6)	A declaration that any information, books and/or document furnished to the respondents by the applicants should not be admissible in any subsequent proceedings unless the applicants explicitly stated that it was furnished to the respondents voluntarily.

The High Court (Budd J) having given the leave sought by the applicants, a statement of opposition was filed on behalf of the respondents. A notice of motion was then brought on behalf of the applicant seeking the reliefs already set out. The hearing of the motion before the High Court

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(Kinlen J) was on both affidavit and oral evidence. There were both written and oral submissions on behalf of the applicants, the respondents and the notice parties.

In a reserved judgment delivered on the 6th July 1999, the learned High Court judge rejected the claim on behalf of the applicants that the appointment by the Minister of the first named respondent as an authorised officer was invalid. He also concluded, however, that the first named respondent had acted unreasonably in requiring the books and records specified by him, both having regard to the extent of the requisition and the time afforded for compliance with it, and in requiring the third named applicant and/or other officers of the first named applicant to attend a meeting with him and answer questions put to them by him and that the requisition should be quashed. Since that relief had not been claimed on behalf of the applicants, he gave them liberty to amend their statement I grounds so as to include that claim.

Both the applicants and the respondents appealed from the order and judgement of the learned High Court judge. In their notice of appeal, the applicants sought an order remitting the proceedings to the High Court on the ground that the learned High Court judge had failed to address a number of matters on which the applicants had relied in the hearing before him and had also failed to determine whether s.19 of the 1990 Act was unconstitutional.  In the alternative, they sought an order reversing the judgment and order of the High Court granting the applicants the various reliefs which they had originally claimed. In their notice of appeal, the respondents appealed from

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that part of the order of the High Court which permitted the applicants to amend the statement grounding the application for judicial review and quashed the requisition made by the first named respondent and those parts of the judgment which determined that the said requisition was invalid. On the hearing of the appeal before this court, the court first heard arguments on behalf of the applicants and the respondents on the question as to whether the proceedings should be remitted to the High Court and, at the conclusion of the arguments, reserved its judgment.

On behalf of the applicants, Mr. Hardiman SC submitted that the learned High Court judge, having rejected the applicants’ claim that the appointment of the first named respondent was invalid on the various factual grounds addressed both in the evidence and in the arguments, should then have gone on to determine, whether, in the light of the constitutional construction which should be given to s.19 of the 1990 Act, the appointment of the first named respondent should nonetheless be declared invalid as being ultra vires the section. He further submitted that, in the event of the learned High Court judge having found against the applicants on that ground, he should then have gone on to determine whether s.19 was invalid having regard to the provisions of the Constitution. In the event, he had determined neither issue and, on that ground alone, he submitted, the proceedings would have to be remitted to the High Court, although that was a course which the applicants asked this court to take with natural reluctance.

Mr. Hardiman further submitted that, apart altogether from that consideration, the learned High Court judge had failed to address a number of

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issues on which the applicants had relied at the hearing before him. In particular, he said that, although the High Court judge had correctly identified one of the issues which arose as whether the reasons given in the schedule to the affidavit of November 18th were in fact operative at the time of the appointment, in the event, he had failed to determine that issue.

In particular, he said that the trial judge did not determine whether the applicants were correct in their allegation that none of the reasons given by the Minister contained material which, as was contended on her behalf, she was prohibited from releasing pursuant to s.21 of the 1990 Act. Nor did he resolve the issue raised by the applicants as to whether the invocation by the Minister of the concept of “corporate governance” was fatal to the validity of her decision. Nor had he determined the issue as to whether the appointment was ultra vires the section as being disproportionate in its effects and consequences.

On behalf of the respondents, Mr. Frank Clarke SC, while accepting that this court had no jurisdiction to adjudicate on a constitutional issue which had not been first determined in the High Court, submitted that the court should nonetheless proceed to determine the other issues dealt with in the High Court which were the subject of an appeal to this court. In the event of the applicants’ appeal succeeding and the respondents’ appeal being dismissed, the constitutional issue would not have to be determined by either the High Court or this court. He also submitted that, while the judgment of the learned High Court judge might not have dealt with in detail with all the grounds relied on by the applicants on the other issues which arose, it was

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clear that he had resolved the issues in question in favour of the respondents and there was, in the result, no difficulty in the court proceeding to deal both with the applicants’ appeal and the respondents’ appeal.

This court has made it clear on more than one occasion that where the issues between the parties can be determined and finally disposed of by resolution of an issue of law other than constitutional law, the court should proceed to determine that other issue First. If that determination disposes of the case, then the court should refrain from expressing any view on any constitutional issue that may have been raised. (See Murphy v Roche [1987] IR 106 and Brady v. Donegal County Council [1989] ILRM 282).

In the present case, however, once the High Court had concluded that the appointment of the first named respondent was intra vires the 1990 Act, the applicants were entitled to have the issue as to the constitutionality of s.19 of the 1990 Act determined. That did not happen in the High Court and, as was conceded on behalf of the respondents, it is not now open to this court to determine an issue of constitutional law which has not been the subject of an adjudication in the High Court.

The argument advanced on behalf of the respondents - that the necessity for the constitutional adjudication would be avoided completely in the event of this court resolving all the other issues in the appeal in favour of the applicants - hardly carries much conviction when put forward on behalf of parties who are resisting all the grounds of appeal put forward on behalf of the applicants. If the course which they are urging on the court were to be adopted - of dismissing the applicants’ appeal and allowing the respondents’

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appeal - the proceedings would then have to be remitted to the High Court for the determination of the constitutional issue, followed, it might be, by yet another appeal to this court. That could not be regarded as facilitating the convenient and expeditious disposition of the case. Since the High Court cannot determine the constitutional issue in isolation from the other issues in the case, the High Court on the rehearing should first determine the non -constitutional issues in the light of the affidavits already filed and such oral evidence as may be appropriate. In these circumstances, I do not find it necessary to express any view as to whether the submission of the applicants that other issues were also left unresolved in the High Court is well founded.

I would allow the appeal, set aside the order of the High Court in its entirety and remit the proceedings to the High Court for a determination of the issues in respect of which leave to apply for judicial review was granted including, if necessary, the constitutional issue.