The Flood tribunal has, probably inadvertently but none the less fundamentally, "lost its way", the High Court has heard. The tribunal's inquiries into the financial affairs of a developer, his wife and company have drifted far away from its terms of reference, it was claimed.
The allegations were made by Mr John Gordon SC, for Bovale Developments Ltd; its director, Mr Thomas Bailey; and his wife, Ms Caroline Bailey. They are challenging the tribunal's entitlement to inquire publicly into their personal financial affairs.
Mr Gordon said it seemed that what had happened in the Flood tribunal was that the allegations of Mr James Gogarty had become an inquiry in themselves. His clients protested that this was not permissible.
The tribunal ought to focus on "the true contents of its mandate" which would involve not proceeding with the inquiries about which his clients complained. Counsel said he was anxious the court should understand there was no element of personal criticism in what he was saying.
Yesterday was the second day of the application by the Baileys and Bovale for an order quashing the tribunal's refusal of February 8th last to order that the evidence of the applicants be heard in private.
In its grounds of opposition to the application, the tribunal claims it acted within its powers in directing that evidence relating to the financial affairs of the applicants be heard in public. The decision to have evidence in public would not involve a disproportionate interference with the Baileys' constitutional rights, whether the right to privacy or privilege against self-incrimination, the tribunal submits.
Mr Gordon said the immediate subject matter of his clients' complaint arose from a letter of January 20th in which the tribunal chairman set out a list of matters and documents pertaining to their affairs which he required them to produce to him.
It was suggested that what was proposed was relevant essentially under two headings: Mr James Gogarty's allegations concerning payment of money to former minister Mr Ray Burke in June 1989; and an issue concerning payment of a "finder's fee" to Mr Gogarty over a period between 1989 and 1996.
The Baileys argue that the proposed line of inquiry was irrelevant and outside the tribunal's terms of reference and therefore ought not to be pursued. They also said the requirement that they should provide a schedule of assets covering 1987-1991 was outside the powers of the chairman and impermissible. It was also claimed there were no allegations against the applicants in the tribunal and none had been formulated by the chairman.
Mr Gordon said it was acknowledged by the chairman that what was proposed involved an extraordinarily minute trawl through his clients' private affairs in circumstances where the chairman and the tribunal had no knowledge as to whether any of that might ultimately be canvassed in public or had any relevance to the terms of reference.
In those circumstances, the proper way to address the matter would be to hear the evidence of his clients in private. That would not prejudice the entitlement of the chairman to require that any material which came to his attention in a private investigation be put on the public record or alternatively dealt with in the course of oral testimony in public later. But it would ensure that what must be an enormous amount of irrelevant material would not fall into the public domain.
The hearing before the President of the High Court, Mr Justice Morris, continues today.