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1. This is an application made by the above named Applicant for leave to institute Judicial Review proceedings against the above named Respondent and naming one James Gogarty as a Notice Party seeking an Order of Certiorari quashing the decision of the Respondent of 19 March, 1999 to admit into evidence before the proceedings of the above mentioned Tribunal an Affidavit of Liam Conroy, deceased, sworn on 20 March, 1989 and declaratory relief to the same effect and also or alternatively an Order of Certiorari quashing the decision of the Respondent of 27 March, 1999 not refusing to allow the public to be present when evidence is given to the Tribunal in relation to the said Affidavit of Liam Conroy, deceased, and ancillary declaratory relief.

It is perfectly clear from the Grounding Affidavit of Mr Michael Fitzsimons, Solicitor, and the relevant portions of transcript before me that the primary if not the sole purpose for which Counsel for the proposed Notice Party, James Gogarty, applied to the Tribunal to have the Affidavit admitted was because the said James Gogarty in his evidence alleged that after the Applicant had paid over money to a member of the Dail and of the relevant planning authority with a view to obtaining a developer's planning permission, the Applicant subsequently sold the relevant land on an agricultural value basis. According to the said James Gogarty in his evidence this apparent inconsistent conduct on the part of the Applicant was caused by panic arising out of his sight of the controversial Affidavit of Liam Conroy, now deceased. All of this is in dispute. But Counsel for the Applicant has consistently argued both before the Tribunal and before this Court that there is no need for the contents of the Affidavit to be disclosed to the Tribunal since the matters in the Affidavit do not directly relate to the terms of reference but that it would be sufficient for Mr Gogarty's purposes if the existence and date of the Affidavit was disclosed and if it was conceded that it contained serious allegations against the Applicant. The Respondent has taken the view that the contents of the Affidavit must be disclosed to enable the Tribunal to make a proper determination of the issues in dispute. It may well be that provided no reasonable argument could be made to the effect that such a ruling was wholly unreasonable, this Court should not grant leave for judicial review. But I do not have to decide that point, because I am in entire agreement with the Sole Member of the Tribunal that once it was established that this Affidavit might have been a catalyst in the events that transpired, it would not be sufficient for the Tribunal merely to be informed as to the existence and date of the Affidavit and that serious allegations are made in it. It is my view that beyond argument the Tribunal would have to see the Affidavit. On that basis there is, in my opinion, no arguable case for an Order of Certiorari quashing the decision to admit the Affidavit and I must refuse leave for Judicial Review proceedings seeking this remedy and the ancillary declaratory remedies.

I want to make it clear that in making this decision I am expressing no views as to whether the contents of the Affidavit of Liam Conroy, deceased, can form part of the evidence at the Tribunal, having regard to the fact that Liam Conroy cannot now be cross-examined. It is not clear to me, indeed, from the evidence before me that any submission has been made by Mr Callanan, Counsel for Mr Gogarty, to the effect that the contents of the Affidavit of Mr Conroy should form part of the evidence before the Tribunal. As I understand it, the reason that he wanted the Affidavit put in in evidence including its contents was to prove not the facts in the Affidavit but rather the context in which Mr Murphy, the Applicant, changed direction under panic. I accept that the two Rulings of the Respondent and particularly the Ruling relating to the application to have the evidence heard in private might seem to suggest that the Affidavit could be used as evidence at the Tribunal as distinct from being used for the purposes of context and credibility but I think that for the purposes of this application I should merely consider whether there is an arguable case that the contents of the Affidavit ought not as a matter of law be disclosed at the Tribunal for any purposes and I have already indicated that I cannot accept such a proposition. The question of the use to which the contents of the Affidavit can be put for the purposes of the ultimate findings of the Tribunal can be argued out in due course before the Sole Member. I am not concerned with that at this stage.

With regard to the second or alternative judicial review sought, I am satisfied that leave should be refused in this instance also. Before Mr Justice Flood ruled that he would not refuse to allow the public to be present when any witnesses of the Tribunal gave evidence in relation to the Affidavit of Liam Conroy, deceased, the relevant paragraphs in the Affidavit which are causing concern to the Applicant had been opened to him at a private hearing. He is therefore fully aware of the nature of the allegations contained in the Affidavit and nevertheless he has decided that the hearing should be in public, I think that that is entirely a matter of discretion for the Sole Member and that this Court would not be entitled to interfere with it. It would have been a different matter if those relevant paragraphs had not been disclosed to the Sole Member before he made his Ruling. If that had been the case, I would have had some doubts and indeed, on balance, I would have probably granted leave for judicial review of the ruling that the evidence concerning the Affidavit should be heard in public but given that Mr Justice Flood made his Ruling knowing the contents of those paragraphs and accepting as I do that it was a matter of discretion for him and that nobody, in my view, could say that the Ruling was wholly unreasonable, it would not be appropriate to give leave to bring Judicial Review proceedings in respect of that Ruling.

I therefore refuse all the reliefs sought.