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1. The statutory provisions relating to the making of applications for sound broadcasting contracts and the manner in which they are to be considered by the Commission are set out in Sections 5 and 6 of the 1988 Act. The process to be carried out by the Commission under Sections 5 and 6 begins by the Commission inviting expressions of interest in the securing of contracts for sound broadcasting services. Areas for local sound broadcasting services are specified by the Minister for Communications having regard to the availability of radio frequencies. The next steps to be taken by the Commission are set out in Section 5 sub-sections 4, 5, 6 and 7 of the 1988 Act as follows:

2. In accordance with this statutory framework the Commission in the latter months of 1996 sought expressions of interest in securing the contract for the Limerick area. It appears that they received expressions of interest from some twenty persons or groups. In accordance with Section 5(4) the Commission in January of this year by public advertisement sought applications from persons or bodies wishing to secure a sound broadcasting contract for the provision of a local sound broadcasting service in Limerick City and county. The advertisement stated that further information and a guide to submissions necessary to complete applications would be available on request from the Commission's offices and that the closing date for applications was the 7th March, 1997.

3. The guidelines for the manner in which applications should be presented to and dealt with by the Commission were sent to all intending applicants. This was a substantial and detailed document headed Guide to Submissions Limerick City and County. So far as it is material it was divided into five parts:

4. The introduction indicated that applications were being sought in accordance with Section 5 of the Act. Part 2 of the document indicated that in determining the most suitable applicant for the award of the sound broadcasting contract, the Commission was obliged to have regard to the suitability of applicants pursuant to the Act and in particular Section 6 thereof. Matters to which the Commission would have to have regard were then set out.

5. Part 5 of the Guidelines specifying the application procedure so far as it is material was as follows:

6. The Commission received nine applications in all. On 10th March, 1997 the Commission issued a press release listing the nine applicant groups. The press release went on to say:

7. Copies of all the nine applications were sent to each member of the Commission and a meeting was held on the 20th March, 1997 for the purpose, inter alia, of selecting a short list of applicants who would proceed to Stage 2 and who would make an oral submission. It appears that a quorum of five members of the Commission attended this meeting. In addition a further member made his views known in writing and one other member (who was at the last minute prevented by outside circumstances from attending the meeting) made his views known in a telephone conversation with Mr. Michael O'Keeffe, Chief Executive of the Commission. At the meeting a short list of four applicants, which did not include any of the four Applicants in these proceedings, was selected by the Commission.

8. On 21st March 1997 the Commission issued another press release headed "Four applicants for Limerick licence invited to public hearings in early April". This press release was marked "for release 2.00 p.m. Friday 21st March, 1997". It announced the names of the four short-listed groups and asked them to attend a public hearing at Castletroy Hotel, Limerick on Friday 4th April, 1997. The press release quoted Mr. Michael O'Keeffe as saying

9. The Chief Executive, Mr. O'Keeffe, who was cross-examined on his affidavit by Counsel for the Applicants, explained that he was anxious to notify the unsuccessful applicants before the issue of the press release. He accordingly arranged for his secretary to telephone each of those groups to notify them that they would be receiving a fax from the Commission. He then sent each unsuccessful group by fax and subsequently by post the following letter:

10. The unsuccessful groups were very naturally disappointed. They had spent considerable time and money in putting in their applications. In an affidavit on behalf of the Applicants sworn on the 8th May, 1997 Mr. Patrick Fitzgerald stated as follows:

11. These averments which are, of course, hearsay were put to Mr. O'Keeffe in cross-examination. He did not recall any telephone or other conversation with

12. Mr. Richardson and denied that any such took place. He did not recall a telephone conversation with Mr. Tom Nolan but did recall meeting him at a lunch in Dublin early the following week. Mr. Nolan had told him that people had been very disappointed and had asked why his group had not been successful. In reply Mr. O'Keeffe had explained the selection procedure to him in some detail, but went no further. Mr. Nolan then told him that they were considering their legal position and that he might be getting a letter.

13. On the 2nd April, 1997 the solicitors for the Applicants wrote to Mr. O'Keeffe as follows:

14. On 3rd April, 1997 the Applicants obtained leave from this Court (Moriarty J.) to issue judicial Review proceedings against the Respondents. The Applicants' original statement of grounds ranged very widely, but the learned Moriarty J. limited the grounds to those numbered 11(C)(E)(F) and (G) in the application, as follows:

15. During the course of the proceedings the Applicants sought an Order for Discovery and affidavits of discovery were sworn. In particular the Applicants sought discovery of the applications of the four applicants successful in being selected for the second stage, in particular so that these might be studied and compared with the Applicants own applications by their proposed expert witness, Dr. Colm Kenny. This discovery was refused by this Court and on appeal was also refused by the Supreme Court. In a succinct judgment delivered on the 10th June, 1997 Barron J. stated (at page 5 of the judgment):

16. When the Judicial Review proceedings came on for hearing before this Court, Mr. Callan, Senior Counsel for the Applicants, submitted that there were two questions before the Court: firstly, whether fair procedures were employed by the Commission at the stage of short listing the applicants qualifying for Stage 2, and secondly, whether or not the Commission were at fault in not giving the Applicants reasons for their failure to qualify for Stage 2. This summary of the Applicants' case is in conformity with what is set out by

17. Barron J. in his judgment of 10th June and is, indeed, the nub of the case. Before considering the two questions set out above and the law applicable to them, however, I feel that I should refer briefly to what appears to be a related claim made by the Applicants and which appears in sub-paragraph (G) of the statement of grounds for judicial review. This claim is that, because in the majority of previous similar competitions for sound broadcasting contracts all applicants were granted an oral hearing, the Applicants have a legitimate expectation that each of them should have been granted an oral hearing provided their applications were proper applications under Section 6 of the 1988 Act, and were not defective in some obvious way.

18. In the first place, this claim of legitimate expectation can have little basis in fact. While it is admitted by the Commission that in many, though not all, previous competitions all applicants obtained an oral hearing, it was made abundantly clear from the beginning that such would not be the case in this competition. As I have already pointed out, the guidelines sent to all applicants clearly set out the two stage process and stated that:

19. The press release issued on 10th March, 1995 when all nine applications had been received, stated:

20. The Applicants were well aware of this position and indeed in a letter from New Limerick FM to its investors dated 18th March, 1997 Mr. Tom Nolan stated:

21. Even if the Commission had at all times previously granted oral hearings to every applicant, that does not in itself create a legitimate expectation that all future competitions will be run in the same way. In Egan -v- Minister for Defence and Others

22. I consider that the dictum of the learned Barr J. is equally applicable to the circumstances of the present case.

23. In any event, it seems to me that the claim of legitimate expectation is another form of the submission made to the Supreme Court in the discovery application in this case - that the Commission had no power to exclude the Applicants from Stage 2 provided that their application qualified them as proper applications within the provisions of Section 6(2) of the Act. That submission was categorically rejected by Barron J. in his judgment of

24. I now return to the two main points put forward by Mr. Callan, Senior Counsel, on behalf of the Applicants. The two points are in essence inter-connected. The Applicants can at present put forward no concrete or actual evidence of unfair procedures by the Commission in making their selection of the four applicants who were to proceed to

25. In making this submission Mr. Callan relies in particular on the case of International Fishing Vessels Limited -v- The Minister for the Marine [1989] IR 149. In that case the Applicant company had sought a sea fishing licence from the Minister for the Marine. The application was refused and no reasons for the refusal were given. The applicant's solicitors immediately sought for detailed reasons to be furnished in writing. The Minister replied as follows (as set out in the head note to the case):

26. The learned Blayney J. held, in granting the orders sought by the Applicant, that in taking a decision of such crucial importance for the Applicant the Minister was under a duty to act fairly and judicially and that the performance of such duties was subject to judicial review. The provision of reasons by the Minister was an essential pre-requisite to ensure fairness of procedures in the exercise by the Applicant of such right to Judicial Review. The learned judge also held that on the facts the Respondent's failure to provide reasons was manifestly unfair since if the reason for refusal was non-compliance with particular conditions but such conditions were not specified or identified by the Respondent then the Applicant was thereby deprived of any opportunity of complying with those conditions so as to be in a position to re-apply for and obtain a licence.

27. At page 155 of the report the learned judge states:

28. Mr. Callan went on to refer to a number of other cases ranging from Dunleavy -v- Irish Land Commission [1952] IR 86 and the 1956 case of State (McGeough) -v- Louth County Council reported at 107 ILTR 13 to the recent decision of the learned Carroll J. in Navan Tanker Services Limited -v- Meath County Council and others (unreported

29. I do not think that I would be doing Mr. Callan's learned and thorough submissions an injustice if I summed up the purport of the cases to which he referred me as that public bodies, and in particular statutory bodies such as the Commission, must act fairly and judicially in making decisions, and that they must also act openly (or what is now so frequently referred to in political circles as transparently) by making clear the reasons for their decisions, at the very least when they are requested to do so.

30. He submitted that the minutes of the Commission's meeting of 20th March, 1997 contained a bare record of the decision taken to select the four successful applicants for Stage 2 - despite the fact that the Commission's own standing orders for Regulation of Meetings of the Commission state at paragraph 3(b) that:

31. No reasons whatever for the rejection of the Applicants' applications appear in the minutes, nor were any given by Mr. O'Keeffe other than a statement in his affidavit sworn the 10th April, 1997 that the four applicants selected for Stage 2 were of a higher standard than the Applicants' applications and that the decision reached by the Commission was a matter of judgment within the expertise of the Commission. Without reasons being given, the Applicants could not judge whether the decision of the Respondents was taken rationally and fairly.

32. On behalf of the Respondent Mr. Hardiman, Senior Counsel, argued that decision making bodies, even where they were statutory bodies, were by no means always required to give reasons for their decisions. The procedure of two stage selection, with consideration of all the applications by each individual member of the Commission, was a perfectly reasonable and fair one, and the giving of reasons was not only unnecessary but in this type of situation could well be invidious and undesirable.

33. Mr. Hardiman pointed out that in his judgment in the case of McCormack -v- The Garda Siochana Complaints Board and Others (unreported 28th January, 1997) the learned President of the High Court had comprehensively dealt with the question of the giving of reasons by bodies charged, whether by statute or by other public duty, with the making of decisions.

34. At page 17 of his judgment the learned President states:

35. The learned judge then considers, compares and contrasts earlier cases where it was held that there was a duty to give reasons, including the international fishing vessels Limited case. At page 24 of his judgment he goes on to say:

36. Mr. Hardiman went on to refer to a number of other cases including Rajah -v- College of Surgeons [1994] 1IR 384 and Manning -v- Shackleton [1994] 1 IR 397 in which the duty to give reasons is surveyed and it has been held that such a duty does not exist in all cases where administrative decisions are made. He refers in particular to the case of Brandon Book Publishers Limited -v- Radio Telefis Eireann [1993] ILRM 806 in which the learned Carney J. held that the probable effect of broadcasting particular material by a public personality was a matter of judgement within the expertise of and exercisable by Radio Telefis Eireann and that the exercise of such judgement was not reviewable by the Courts. At page 815 the learned judge states:

37. Mr. Hardiman also refers to the judgment of the learned Mr. Justice Barr in the case of Mary O'Dwyer -v- James Patrick McDonagh and Others (unreported

38. It is clear from the judgment in the O'Dwyer case that the learned Barr J. makes a distinction between the exercising of a judicial or quasi judicial function and the procedure whereby one candidate is selected for promotion from a pool of applicants.

39. Applying the law as set out by both Counsel in their submissions to the present case it seems to me that the question which I must decide is whether the Commission, either of its own accord or at the request of the applicants, should have given reasons for its failure to select the applicants' applications for Stage 2 of the procedure. Apart from this question the procedures carried out by the Commission are within the framework of the statute and not inherently unfair. In a process whereby one candidate for a post, as in the O'Dwyer case, or one applicant for a contract, as in the instant case, is to be selected from among a number, a process which consists of the studying of all applications by the members of the selecting body, the making of a short list, and the oral interviewing of those on the shortlist, is a perfectly normal procedure. One must presume that the members of the Commission have been appointed by the Government under Section 3 of the 1988 Act on account of their relevant expertise, and the matter of selection of sound broadcasting contractors is a matter for their judgment provided that they adhere to the procedures and guidelines set out in Sections 5 and 6 of the Act.

40. On considering the case law which was helpfully set out for me by Counsel on both sides, it seems to me that as established in McCormack's case the giving of reasons for a decision made by an administrative body is not in all cases necessary. The court must distinguish between a situation such as obtained in the International Fishing Vessels Limited case where, say, the obtaining of a licence is in theory open to a large number of individual applicants and one particular applicant is refused, and the situation where there is a competition between applicants and one particular applicant must be chosen and all others excluded. In the present case, using the tests set out by the learned President at page 20 of his judgment in McCormack's case, the nature of the statutory function of the Commission is the choosing of one applicant from among a pool of applicants, and the statutory framework is to be found in Sections 5 and 6 of the 1988 Act. The provisions of the Sections were closely followed by the Commission in their procedures and in the guidelines which they issued to applicants. The Applicants have, of course, suffered the detriment which is bound to be suffered by all unsuccessful applicants, that of having put a great deal of time, effort and money into the making of an application which was not successful. This detriment, however, does not arise from the failure to give reasons, but from the actual rejection of their applications. This is not a situation where the statute permits an appeal to this Court from the decision of the Commission and the failure to give reasons would render ineffectual a statutory right of appeal. The remedy of judicial review does not provide an alternative form of appeal against administrative decisions as such. As was said by the learned O'Hanlon J. in deciding a preliminary point in Rajah -v- College of Surgeons [1994] I IR 384 at 388:

41. It seems to me on considering the factual background and the whole conduct of the proceedings to date that in essence the Applicants seeks to overturn the decision of the Commission and replace it with a decision in their favour. As was said by the learned Barron in his judgment of 10th June, 1997 at page 7:

42. This is not a situation where the Commission should be required to give reasons for its decision and indeed is not a proper situation of the use of the remedy of Judicial Review.

43. Since I have held that the giving of reasons is not necessary in the situation under review it is not necessary for me to decide whether the conversation between Mr. Tom Nolan and Mr. Michael O'Keeffe, Chief Executive of the IRTC and/or the alleged telephone conversation between Mr. O'Keeffe and Mr. Richardson constitute a proper request for reasons for the Commission's decision. The material on which the Commission based its decision and which was before it at all material times was simply the various applications for the sound broadcasting contract. This material had to be considered in the light of the matters set out in Section 6(2) of the 1988 Act and there is no evidence before me to suggest that this was not done.

44. For these reasons I am satisfied that the Applicants are not entitled to the relief which they claim.