Millionaire businessman Denis O'Brien has asked the High Court to restrain the Moriarty tribunal from calling economist Peter Bacon to give evidence in public about possibly "seriously fundamentally flawed" procedures which led to the award of the State's second mobile phone licence to Esat Digifone.
Mr O'Brien claims a report prepared by Mr Bacon about the evaluation process - which led to the award of the mobile phone licence to Esat - does not constitute evidence and is inadmissible before the tribunal.
The court heard that the March 2003 report by Mr Bacon confirmed a "tentative view", which the tribunal then held, that a report by Michael Andersen, a management consultant with the Danish consultancy firm AMI, which was retained by the government to provide expert assistance in the mobile phone licence competition, "may contain a number of seriously fundamental flaws". The AMI report formed the basis for the ultimate decision to award the licence to Esat in October 1995.
The court was also told that counsel for the tribunal had, at a meeting on March 31st, 2003, noted that the problem with the AMI report was that "nobody understands it apart from the man who wrote it".
The notes of that same meeting had also recorded Mr Bacon as stating: "Everything points to Andersen having been manipulated. He was pushed around."
In judicial review proceedings, Mr O'Brien is also seeking an order directing the tribunal to take steps via the Danish courts aimed at compelling Mr Andersen and other personnel with AMI to give evidence to the inquiry.
The failure of the tribunal to pursue the matter of Mr Andersen's giving evidence to the Danish courts and to seek some 300 documents from AMI is unreasonable, irrational, in breach of fair procedures and disproportionate, Mr O'Brien claims.
Mr Justice John Quirke yesterday began hearing the challenge by Mr O'Brien, former chairman of Esat Digifone, to the procedures adopted by the tribunal in conducting its inquiry.
The tribunal has denied any breach of fair procedures or irrationality.
It contends that Mr O'Brien's application regarding Mr Bacon is premature as the tribunal chairman had said he would hear submissions before deciding whether to call Mr Bacon as a witness.
The case continues today.
