Brosnan v South Western Regional Fisheries Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Ouirke |
| Judgment Date | 04 September 1998 |
| Neutral Citation | [1998] IEHC 141 |
| Docket Number | No. 330 J.R./1997 |
| Court | High Court |
| Date | 04 September 1998 |
[1998] IEHC 141
THE HIGH COURT
BETWEEN
AND
Citations:
FISHERIES (CONSOLIDATION) ACT 1959 S294
FISHERIES (AMDT) ACT 1991 S17
FISHERIES (CONSOLIDATION) ACT 1959 S294(2A)
FISHERIES (CONSOLIDATION) ACT 1959 S294(2A)(a)
DALY, STATE V MIN FOR AGRICULTURE 1987 IR 165
LYNCH, STATE V COONEY 1982 IR 337
TIERNAN V NORTH WESTERN REGIONAL FISHERIES BOARD 1997 2 IR 104
FISHERIES (CONSOLIDATION) ACT 1959 S159
FISHERIES (CONSOLIDATION) ACT 1959 S158
FISHERIES (CONSOLIDATION) ACT 1959 S294(2)
Synopsis:
Judicial Review; certiorari; mandamus; appointment of waterkeeper; respondent board refused to grant applicant Certificate of Suitability for appointment as waterkeeper; decision based on consideration of applicant's criminal record together with comments made by a District Judge in the course of sentencing applicant; decision made without giving applicant opportunity to make submissions; failure to give reasons for refusal prior to court proceedings; fair procedures; constitutional justice; whether Board in exercising its statutory power to issue a certificate was subject to a guarantee of fair procedures in favour of the applicant; whether in considering a request for a certificate, the Board was engaging in a quasi-judicial process; whether principles of constitutional justice required that applicant should have been given an opportunity to make submissions to the Board before final decision on the application was made; S.294, Fisheries (Consolidation) Act, 1959 as amended by S.17, Fisheries (Amendment) Act, 1991 (High Court: Quirke J.- 04/09/1998)
Held: Orders granted
Brosnan v. South Western Regional Fisheries Board
Where the exercise of a statutory power fundamentally affects an applicant's capacity to earn a livelihood, the statutory body is obliged to apply fair procedures in the exercise of that power. Any opinion formed in the exercise of a statutory power must be reached after the application of fair procedures. The principles of constitutional justice require that an applicant be allowed to make submissions before any final decision on his application - even though such submissions might have no effect on the final outcome. In this case, the applicant had applied for a certificate of suitability to be a waterkeeper. The certificate was necessary for him to earn his living. After considering the applicant's extensive criminal record, the Board refused the application, without giving the applicant an opportunity to be heard. No reasons were given for the decision.
The court ruled that the Board was engaged in a quasi-judicial process, not just an administrative function. The Board's reasons for refusing the certificate were given ex post facto and did not take into account the applicant's successful appeal against sentence in the criminal matters. The court said Board had failed in its obligation to apply fair procedures to its consideration of the applicant's request. It quashed the decision and directed the Board to re-hear the application.
Judgment of Mr. Justice Ouirkedelivered the 4th day of SEPTEMBER,1998.
By Order of the High Court (Budd J.) dated the 10th day of September, 1997, the Applicant was granted leave to apply for various reliefs by way of Judicial Review in respect of a decision made by the South Western Regional Fisheries Board (hereinafter referred to as the Board) on the 10th day of June, 1997, whereby the Board declined to issue to the Applicant a certificate of suitability for appointment as a water keeper pursuant to the provisions of Section 294 of the Fisheries (Consolidation) Act, 1959(hereinafter referred toas the 1959 Act) as amended by Section 17 of the Fisheries (Amendment) Act, 1991(hereinafter referred to as the 1991 Act).
In particular, the Applicant was granted leave to seek:-
(a) an Order of Certiorari quashing the decision of the Board made on the 1Oth day of June, 1997, and
(b) an Order of Mandamus directing the Board to reconsider the Applicant's request for a certificate of suitability for appointment as a water keeper together with other Declaratory and Injunctive reliefs against both Respondents.
At the commencement of the hearing Counsel indicated that the parties had agreed that the proceedings herein would be confined, at least until further Order, to the Applicant's claim against the Board for the reliefs described at (a) and (b) above, and, by consent of the parties, I adjourned the Applicant's claim against the Second, Third and Fourth named Respondents pending the outcome of these proceedings.
The Applicant who is 43 years old and resides with his wife and two children in Tralee, County Kerry was first appointed a water keeper in 1977 pursuant to the provisions of the 1959 Act and he has been employed in that capacity since 1977. Although he has described himself in evidence as a "security contractor" he has clearly averred to the fact that since the date of his first appointment as a water keeper in 1977, he has relied upon thatoccupation as his sole source of income and the sole means of support for himself and for his family so that he relies upon this employment exclusively for his livelihood.
The Board is a statutory body which, inter alia, has responsibility for the management of fisheries in the Kerry region and for appointing waterkeepers for state fisheries but additionally, and in particular, it is the statutory body charged with the responsibility imposed by Section 17 of the 1991 Act for the issue to appropriate applicants of certificates of suitability for appointment as waterkeepers in respect of private fisheries who are desirous of making such appointments for the purpose of protecting their fisheries.
The Board comprises a number of persons who, inter alia, are elected thereto pursuant to the provisions of Section 14 of the 1991 Act and usually because they are reputable persons living within the South Western region of Ireland who are experienced in matters relating to the protection and preservation of fisheries.
Pursuant to the provisions of Section 294 of the 1959 Act (as amended) the appointment of a private water keeper must be confirmed by a Judge of the District Court and Section 2A of Section 294 of the 1959 Act (as inserted by Section 17 of the 1991 Act) expressly provides inter aliathat:-
a "(a) An appointment shall not be confirmed unless the person concerned has been issued by the appropriate regional board with a certificate of suitability for appointment.
(b) An appointment shall be for a period not exceeding fiveyears.
(c) Every appointment made before the commencement of the Fisheries (Amendment) Act, 1991, and in force at the date of the commencement thereof shall expire not later than five years after that date..."
The 1991 Act came into force on the 31st October, 1991.
Accordingly, the powers and obligations of a water keeper cannot be lawfully vested in the Applicant unless and until the Board has first issued to him a document certifying that he is a suitable person to be appointed a water keeper and his authority to act in that capacity and to earn his livelihood from that activity is wholly dependant upon the issue of such a certificate by the Board.
The Applicant was on the 31st day of October, 1991 a lawfully appointed water keeper pursuant to various warrants issued by the Board pursuant to the 1959 Act and having regard to the provisions of sub-section (c) of Section 2A of Section 294 of the 1959 Act (as inserted by Section 17 of the 1991 Act) his appointment as a water keeper remained in force until its expiration on the 31st October,1996 when he was engaged in the occupation of water keeper on behalf of some private fisheries including Messrs. Chopwell Limited, Mr. Paul Metz and Messrs. K.R.D. Fisheries Limited all of whom indicated a desire to re-appoint the Applicant as water keeper in respect of their fisheries.
By letter dated the 27th May, 1997 the Applicant wrote to Mr. Barry, the Manager of the Board, seeking Certificates of Suitability in respect of ".... Upper Caragh River, Owenmore and K.R.D. Fisheries...." indicating inter alia that " .... as these fisheries are private and are part of my business and means of earning a living, I anticipate that there will be noproblems".
By letter dated the 13th June, 1997 Mr. Barry replied to the Applicant referring to his application and stating simply that"... the Board has declined to issue the requested letter".
By letter dated the 23rd June, 1997 the Applicant's Solicitors wrote to the Board requesting that the Board should specify the grounds or reasons why it was declining to issue the appropriate certificate and by letter which is (presumably incorrectly) dated 17th June,1997, the Board's Solicitors replied indicating that".... there is no obligation on the Board to issue reasons for itsdecision".
Uncontradicted evidence was adduced on behalf of the Board to the intent that the Applicant has been convicted of the following offences:-
1. Assault upon a member of the public on the 22nd February,1979.
2. Possession of a single-barrelled shotgun and ammunition on the 9th day of March, 1979 with intent to endanger life or cause serious injury to property.
3. Assault upon a police officer on the 3rd day of August,1986.
4. Resisting a police officer in the execution of his duty on the 3rd day of August, 1986.
5. Three separate convictions of assault upon members of the public on the 6th day of June, 1985.
6. Conduct calculated to lead to a breach of the peace on the 6th day of June, 1985.
7. Two separate convictions of assault on members of the public...
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