Although Dunnes Stores' present management insists there are no "current concerns" about its operations following the departure of Mr Ben Dunne in 1994, a "less than convincing" explanation had been advanced for a delay of several years in obtaining an auditor's certificate for the accounts of Dunnes Stores Ireland, the High Court was told yesterday.
Mr John McBratney SC, for the Tanaiste and Minister for Enterprise, Trade and Employment, Ms Harney, said an auditor's certificate was "not just a piece of paper" but indicated whether a company had kept proper books and accounts.
For some "unexplained reason", no auditor's certificate was produced until mid-1998 for accounts of Dunnes Stores Ireland Company (DSI) dating back to 1990, he said.
Ms Margaret Heffernan, who, with her brother, Mr Frank Dunne, now runs the Dunnes Stores group, had, insofar as she had given any explanation for this, said the company DSI was no worse than any other companies, counsel said. He said Dunnes had a past history of "undocumented payments".
When Ms Heffernan and Mr Frank Dunne took over the companies in 1994, they said this was a new regime and the Minister must accept that, Mr McBratney continued.
But it then transpired there was no auditor's certificate for accounts for a period up to 1998 and this was part of the same series of activities, "or lack of activities", which suggested the requirements of the Companies Acts in relation to keeping proper books and records may not have been complied with and indicated Ms Harney was not abusing her powers in appointing an authorised officer to two Dunnes companies.
He stressed he did not know whether the provisions of the Acts were not complied with but there were "circumstances suggesting" they may not have been.
Mr McBratney said that it was contended that there was no further cause for concern regarding Dunnes after Ms Heffernan and Mr Frank Dunne took over in 1994.
But, he said, Ms Heffernan and Mr Dunne were at all times directors of the companies even when Mr Ben Dunne was also a director.
Mr McBratney, with Mr Mark Sanfey, was continuing his submissions on the fourth day of the hearing of the challenge by Dunnes to the decision of Ms Harney on July 22nd 1998 appointing an authorised officer to the two Dunnes companies. In December 1998, the High Court directed the Minister to give Dunnes reasons for her decision to appoint an authorised officer.
These were given but Dunnes contends they are insufficient to warrant the appointment.
Dunnes' challenge to the appointment was first heard by the High Court last July but the Supreme Court later ruled that the trial judge, Mr Justice Kinlen, had failed to address some of the issues raised in the case, including the constitutionality of Section 19 of the Companies Act 1990.
The Supreme Court directed the matter should be fully reheard in the High Court.
That rehearing opened this week before Mr Justice Butler and resumes on Tuesday.
