The Tanaiste and Minister for Enterprise and Employment, Mary Harney, has failed to advance a single sustainable reason for her decision to appoint an authorised officer to two Dunnes Stores companies, it was claimed in the High Court yesterday.
The essence of the Minister's complaint about certain payments made with monies which were the property of Dunnes had more to do with the recipients of the payments than with how the payments were recorded, Mr Richard Nesbitt SC, for Dunnes said.
He contended the driving force behind the appointment of the authorised officer to Dunnes Stores Ireland company and Dunnes Stores (Ilac Centre) Limited was not a request for documents but a desire to have some sort of examination of the companies not envisaged under Section 19 of the Companies Acts.
Mr Nesbitt said the core issue in the case was whether the reasons ultimately furnished by Minister Harney for her decision to appoint the authorised officer were sufficient to sustain the decision.
He said the Minister had initially refused to give reasons until directed to do so by the High Court.
The reasons then given simply did not sustain the Minister's action, he argued. They referred, among other matters, to payments which were already the subject of investigations by other authorised officers and the McCracken and Moriarty tribunals. One payment referred to - of £282,500 sterling drawn on Dunnes Stores (Bangor) Ltd to Tripleplan Ltd, a company whose directors included Mr John Collins and Mr John Furze, was being investigated by the Moriarty tribunal and was "the single most investigated payment in the history of the State".
Another reason cited by the Minister was a reference to concern for the members of the company but no member had expressed any concern about the operations of the company. Every reason advanced was already in the public domain, Mr Nesbitt said. The Minister had acted outside her jurisdiction and had made a mistake.
He said the Minister had no power to pass on the report of her authorised officer to the Revenue Commissioners and, in any event, Dunnes had been described as model taxpayers and there was no suggestion of any revenue offence. Nor could the Minister act as an agent for the DPP. He said the lateness in producing an auditor's certificate for accounts of DSI dating from 1990 to 1994 was not denied. But, he said, this did not point to illegality or dishonesty and did not warrant a Section 19 appointment.
Mr Nesbitt, with Mr Dermot Gleeson SC, and Mr Ben O Floinn, for Dunnes, was replying to closing submissions made on behalf of Minister Harney on the fifth day of the hearing of the challenge by the two Dunnes companies and Ms Margaret Heffernan - a director of both companies - to the decision of the Minister of July 22nd 1998 appointing an authorised officer to the two companies.
The five-day hearing concluded yesterday and judgment was reserved. Mr Justice Butler indicated he may give his decision towards the end of this month.
Earlier, in his submissions, Mr John McBratney SC, with Mr Mark Sanfey, for the Minister, disputed claims by Dunnes that the documentation sought by the authorised officer in January 1999, was so extensive the request could not be met. He argued the authorised officer's notice seeking documents was valid and capable of being performed.
He said the accounts of the Dunnes' companies had been audited by 1999 and payments in relation to which documents were sought must have been known about by then. He said the Triple-plan payment had been suspended in an account from 1987 until 1998 when Dunnes found out about it and informed the Moriarty tribunal. It seemed unlikely there was a mass number of such payments but there might be some.
