Dublin West TD Mr Liam Lawlor applied yesterday to the High Court to prevent Mr Justice Smyth from hearing his case.
Mr Lawlor is seeking to have a new judge assigned to the case which could result in his being jailed for allegedly failing to co-operate with the Flood tribunal.
It was submitted that as a barrister Mr Justice Smyth had given legal advice to Green Properties in 1991 in relation to the planned Blanchardstown shopping centre in west Co Dublin. The centre would be in competition with the controversial Quarryvale shopping centre nearby, which has figured in the tribunal's hearings. Mr Justice Smyth said he had no recollection of this but he accepted the documentary evidence.
On October 24th last, the judge ordered Mr Lawlor to appear before the tribunal and provide it with various documents within a stipulated timescale. He also found that the tribunal's order of June 8th, 2000, directing Mr Lawlor to make discovery of documents and records, was valid. The Supreme Court rejected an appeal by Mr Lawlor against Mr Justice Smyth's High Court decision.
On December 18th Mr Justice Smyth granted leave for a notice of motion seeking the attachment or committal of the former Fianna Fail member to be served on him. The hearing had been fixed for December 30th/31st but was later put back until yesterday.
In an affidavit yesterday, Mr Lawlor said he could not allege any bias on the part of any person, but he was deeply concerned that Mr Justice Smyth was handling the matter and that he had made the orders to which Mr Lawlor had referred in his lengthy affidavit.
He was not formally objecting to Mr Justice Smyth embarking on the hearing, added Mr Lawlor. He had told his counsel it was his view the role of the judge in the proceedings was compromised.
If Mr Lawlor is successful in his application there could be further moves to overturn earlier High Court orders against him.
The High Court hearings were delayed for 31/2 hours yesterday while discussions between lawyers proceeded. Mr John Rogers SC, with Mr Patrick MacEntee SC, for Mr Lawlor, told the judge his side was awaiting an affidavit. The hearing did not begin until 3.30 p.m.
Lawyers for Mr Lawlor had not concluded their submissions when the hearing adjourned yesterday. Counsel for the Flood tribunal will also make submissions.
In his affidavit, Mr Lawlor said that since he was "stood down" as a witness by the tribunal chairman on December 15th he had been trying to satisfy the chairman's requirements on discovery and to place himself in a better position to answer questions at any further sitting.
During his tribunal evidence he had said he wished to assist its inquiries. He had answered numerous difficult questions on matters which had happened many years ago. These had been raised without notice.
He believed that last week his counsel had updated counsel for the tribunal on his progress in preparing his proposed definitive affidavit of discovery.
Mr Lawlor said that on Wednesday evening last he went through papers in his office. Members of his staff and family were also working there preparing papers for his affidavit of discovery. They asked that he not interfere with the orderly arrangement of the documents they were working on, so he began looking at others related to planning in west Dublin and, in particular, Quarry vale/Blanchardstown.
He came upon two documents among pages of what was clearly, at one time, a larger document. The second comprised three pages and was an opinion of counsel dated November 13th, 1991, in which Green Property was named as querist. The opinion was signed in type "T. C. Smyth".
Mr Lawlor said he had not seen these documents since, at the latest, 1992. He had had no recollection of their existence. He drew the attention of his counsel to them. He asked was T. C. Smyth the judge who had tried his case, and this was confirmed.
"I say that it is quite clear from the said opinion that T. C. Smyth advised Green Property plc in his capacity as counsel," added Mr Lawlor. "In his opinion, he set out how Green Property plc was suddenly confronted by a decision of the elected members of Dublin County Council zoning a site at Quarryvale for a town centre development."
The hearing continues today.