The Supreme Court has allowed Dunnes Stores to appeal its unsuccessful High Court challenge to the appointment by the Tanaiste, Ms Harney, of an authorised officer to two of its companies.
In a reserved judgment yesterday the Chief Justice, Mr Ronan Keane, said he would set aside the High Court order and remit the proceedings to the High Court for a new hearing to determine a number of points.
Dunnes sought clarification on whether there were limits to the Minister's powers to require the production of documents from companies under Section 19 of the Companies Act 1990 It claimed the issue was not determined by the High Court, and that the Minister engaged in a wide-ranging investigation not contemplated by Section 19. The case came before the Supreme Court by way of appeal against a High Court judgment last July on a challenge by Dunnes Stores Ireland Company, Dunnes Stores (Ilac Centre) Limited and Mrs Margaret Heffernan to the appointment of Mr Gerard Ryan as authorised officer to the two companies.
On July 22nd, 1998, the Tanaiste and Minister for Enterprise Trade and Employment informed Mrs Heffernan, a director of the Dunnes companies, that she had decided to appoint an authorised officer to examine the books and documents of the two companies under Section 19.
These steps were taken by the Tanaiste after the Taoiseach was given the report of the McCracken tribunal. It concluded that Mr Ben Dunne, who was at the time chairman and an executive director of Dunnes Holding Company, made payments to Mr Michael Lowry TD and two companies with which he was associated and to former Taoiseach Mr Charles Haughey.
The Minister and her Department were concerned the McCracken report had disclosed possible breaches of the Companies Acts and asked the Dunnes companies to produce books and documents. Some documents were produced, but the Minister invoked her powers under Section 19 of the Companies Act.
In the High Court the Minister was ordered to give her reasons for appointing the officer. Dunnes was dissatisfied with the reasons and the present proceedings began. Dunnes sought an order quashing the Minister's decision to appoint an authorised officer and a declaration that Section 19 of the Companies Act was unconstitutional.
Mr Justice Kinlen, in the High Court, found Ms Harney properly appointed the authorised officer but that Mr Ryan exceeded his powers in how he made demands for documents.
An appeal by the Dunnes companies and Mrs Heffernan, together with a cross-appeal by the State and Mr Ryan against the decision that Mr Ryan exceeded his powers, came before the Supreme Court in December.
The five-judge court was asked by Mr Adrian Hardiman SC, for Dunnes, to return the matter to the High Court to be reheard in full. Mr Frank Clarke SC, for the Tanaiste, opposed this.
The Chief Justice said once the High Court had found Mr Ryan's appointment within the powers of the Act, the applicants were entitled to have the issue of Section 19's constitutionality determined. It was not now open to the Supreme Court to determine an issue of constitutional law which had not been the subject of an adjudication in the High Court.
"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," Mr Justice Keane said.
The other four judges of the court - Ms Justice Denham, Mr Justice Murphy, Mr Justice Barron and Mr Justice Murray - agreed with his ruling.
Counsel for the minister said he would like to read the judgment before any decision on costs. The case was adjourned for mention tomorrow.