The Flood tribunal through its lawyers yesterday began an appeal in the Supreme Court against the High Court decision earlier this month which upheld challenges made by Fianna Fail backbencher Mr Liam Lawlor TD to orders made by the tribunal.
On July 2nd, Mr Justice Kearns in the High Court granted Mr Lawlor's application to quash two orders of the tribunal directing him to appear before tribunal lawyers in private session and to answer questions, and to swear an affidavit detailing any companies in which he had an interest between 1987 and 1994.
On that occasion, the judge refused the TD's application to quash a third tribunal order. That order directed him to make discovery of documents relating to payments to Mr Lawlor by Arlington Securities plc and/or Mr Thomas Gilmartin and further documents regarding Mr Lawlor's bank/ building society accounts between 1987-1994.
When Mr Lawlor refused to provide information in his possession to the tribunal and declined to attend for an interview with members of the tribunal's staff, Mr Justice Flood made two orders, the first of which directed him to attend for interview and the second directing him to provide an affidavit containing certain information.
It was these orders which Mr Lawlor challenged in the High Court.
The main issue between the sides in last month's High Court hearing was the interpretation of section 4 of the Tribunals of Inquiry Evidence Act, 1979.
It states: "A tribunal may make such orders as it considers necessary for the purposes of its functions and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court, or a judge of that court in respect of the making of orders."
Earlier this month, Mr Justice Kearns upheld Mr Lawlor's contention that the section should be construed as entitling a tribunal to make such orders as it considers necessary but, in the making of those orders, tribunals had only the powers of the High Court and no greater powers.
Yesterday, Mr Patrick Hanratty SC and Mr Desmond O'Neill SC, for the tribunal, opening their appeal against Mr Justice Kearns's decisions quashing the two orders, submitted the orders were permissible under section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979.
They were also made within the tribunal's jurisdiction and did not contain any errors on their face.
There were, Mr Hanratty said, marked differences between the functions of a court and those of a tribunal of inquiry: the function of a court was to adjudicate whereas that of a tribunal was to investigate.
This difference was also reflected in the fact that in the case of a court, the evidence was gathered by the parties to the litigation.
In a tribunal, the information which might ultimately be put in evidence at a public sitting of the tribunal, was gathered by the tribunal itself.
Section 4 of the 1979 Act was clear. The legislature in unambiguous language gave a discretionary power to tribunals to make orders which tribunals themselves considered necessary for the purpose of their functions.
It was submitted that Mr Justice Kearns misdirected himself in law in holding that section 4 conferred on tribunals the powers of the High Court.
Such a construction, said Mr Hanratty, ignored the fact that tribunals and courts made orders for different purposes and that the great majority of court powers have no relevance to tribunals.
If tribunals were, as had been repeatedly confirmed by the courts, masters of their own procedures, then it followed that they could receive information in a variety of different ways.
Mr Adrian Hardiman SC, for Mr Lawlor, said rightly or wrongly it had been decided by the Oireachtas to confer no greater powers on tribunals than the High Court.
The appeal hearing continues today.