The Mahon tribunal has no jurisdiction to hold a public hearing on the Fitzwilton Group's donation of £30,000 to Fianna Fáil, the Supreme Court ruled yesterday.
The June 1989 payment was made through Ray Burke.
The five-judge Supreme Court in an unanimous decision said the planning tribunal had failed to comply with a part of its amended terms of reference and has no jurisdiction to hold a public hearing in relation to the £30,000 Fitzwilton module.
It was not necessary, presiding judge Mrs Justice Susan Denham said, to grant an order of prohibition from holding the public hearing as the court had found there was a lack of jurisdiction on the tribunal's part.
She granted a declaration that the tribunal had failed to comply with a paragraph of the amended terms of reference which referred to additional matters to go to public hearing and which set a deadline.
The Fitzwilton Group had appealed the High Court's refusal to restrain the Mahon tribunal from holding a public hearing into the payment in 1989 by one of its companies.
The case centred on the amended terms of reference of the tribunal as set down by the Houses of the Oireachtas in December 2004 and which listed specific matters which were to proceed to a conclusion. It also gave the tribunal discretion to consider additional matters but required steps to be taken before a stated date.
Fitzwilton had contended the amended terms of reference required the tribunal to stipulate in writing what matters would go to public hearing by May 1st, 2005, and it claimed the Fitzwilton payment was not so stipulated.
Last year Mr Justice Kevin Feeney said the High Court was satisfied that a tribunal document of April 28th, 2005, was clearly a written record of the decision taken by the members of the tribunal on that date listing the additional matters that should proceed to public hearing.
The appeal, Mrs Justice Denham said, turns on the construction of the paragraph in the amended terms of reference which deal with a discretion to deal with additional matters but before a stated date.
The question was whether the tribunal complied with that in its document of April 28th, 2005, and which listed the Fitzwilton payment as an additional matter.
The concept, she said, behind the establishment of a tribunal is that there be an inquiry into definite matters as a matter of urgent public importance. The fact that the tribunal is still inquiring 10 years later is "the antithesis of an urgent public inquiry".
Under the mandatory requirement of the Oireachtas, the tribunal was required to consider, decide and record what additional matters should go forward to public hearing and this had to be done by May 1st, 2005.
Mrs Justice Denham, referring to the tribunal document of April 28th, 2005, said the tribunal was required to consider what additional matters should go to public hearing and to make a written record of the decision and to notify the parties.
"I am satisfied the tribunal did not make a decision - it deferred its decision on April 28th, 2005. The document of April 28th clearly indicates a postponement of the decision. This is not a record of a decision to proceed to public hearings. It is a document plainly indicating a contrary decision, a postponement of the decision," Mrs Justice Denham concluded.
In a separate judgment, Mr Justice Nicholas Kearns, who agreed with Mrs Justice Denham, said he could not take the view that the requirement to consider, decide and record compliance with the mandatory requirements of the Oireachtas could be watered down or pushed aside.
Mrs Justice Susan Denham said the context in which the issue arose had been set out in an affidavit. In June 1989, the Fitzwilton Group made a political donation to Fianna Fáil. The sum of £30,000, it was stated, was given through Ray Burke, who was then a minister. It was submitted that the entirety of the political contribution was intended for Fianna Fáil, but in 1998 Fitzwilton became aware that Fianna Fáil had not received all the money.
The tribunal made inquiries into the Fitzwilton payment in 1998 and Fitzwilton co-operated with the investigations.
From April 2000 to February 2003, Fitzwilton said it heard nothing from the tribunal and presumed it was satisfied the £30,000 was a bona fide political contribution to Fianna Fáil.
In February 2003, the tribunal in a letter said it was considering making further orders of discovery on the matter. In submissions to the tribunal, Fitzwilton contended a public inquiry into the political contribution was not warranted.
After the Supreme Court hearing, a spokesman for the Fitzwilton group said it was pleased with the decision and that Fitzwilton had always believed the tribunal had failed to comply with its terms of reference.