Carberry Fishing Ltd & Fintra Trawling Company Ltd v Registrar General of Fishing Boats (Vallely) and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 28 June 2012 |
| Neutral Citation | [2012] IEHC 260 |
| Court | High Court |
| Date | 28 June 2012 |
[2012] IEHC 260
THE HIGH COURT
BETWEEN:
FISHERIES (AMDT) ACT 2003 S6(1)
FISHERIES (AMDT) ACT 2003 PART III
FISHERIES (AMDT) ACT 2003 S18
FISHERIES (AMDT) ACT 2003 S7(1)
FISHERIES (AMDT) ACT 2003 S6(2)
FISHERIES (AMDT) ACT 2003 S6(7)
FISHERIES (AMDT) ACT 2003 SCHED 1
FISHERIES (AMDT) ACT 2003 SCHED 1 ART 1
FISHERIES (AMDT) ACT 2003 S19
MCGLINCHEY v GOVERNOR OF PORTLAOISE PRISON 1988 IR 671
ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1
WILEY v REVENUE CMRS 1994 2 IR 160 1993 ILRM 482 1992/4/1204
LINEN SUPPLY OF IRELAND LTD (FORMERLY CWS-BOCO IRELAND LTD), IN RE UNREP MCGOVERN 3.2.2010 2010/30/7438 2010 IEHC 28
MCCARRON & ORS v SUPERINTENDENT KEARNEY & ORS 2010 3 IR 302 2011 1 ILRM 237 2010/31/7813 2010 IESC 28
AG v GREAT EASTERN RAILWAY CO 1879-80 5 APP CAS 473
GREEN DALE BUILDING CO LTD, IN RE 1977 IR 256
FISHERIES
Licensing
Appeals - Appeals officer - Appointment - Expiry of warrant of appointment - Judicial review - Estoppel - Availability of alternate remedies - Legitimate expectations - Whether respondents estopped from arguing appeals officer not validly appointed - Whether term of appeals officer expired - Whether appeals officer reappointed - Whether reassignment of appeal to another appeals officer constituting alternate remedy - Whether applicant had legitimate expectation that appeals officer validly appointed or mistaken belief - Whether donee of statutory power could extend power by estoppel - In re Green Dale Building Co [1977] IR 256; The State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381 and McCarron v Kearney [2010] IESC 28, [2010] 2 IR 302 applied - McGlinchey v Governor of Portlaoise Prison [1988] IR 671 distinguished - Wiley v Revenue Commissioners [1994] 2 IR 160 and Carbery Fishing Ltd v Vallely [2011] IEHC 527, (Unrep, Cross J, 19/12/2011) considered - Fisheries (Amendment) Act 2003 (No 21), ss 6, 7, 18, 19 and Schedule 1 - Relief refused (2011/664JR - Hedigan J - 28/6/2012) [2012] IEHC 260
Carbery Fishing Ltd v Vallely
Facts The applicants had appealed the granting of authorisations regarding fishing vessels pursuant to the Fisheries (Amendment) Act, 2003 to the first-named respondent (who was an appeals officer). Difficulties subsequently ensued as the appeals officer”s warrant of appointment had expired. The applicants initiated judicial review proceedings seeking orders that the first-named respondent was validly appointed and that they had a legitimate expectation that their appeal would be heard. On behalf of the respondents it was submitted that the applicants would be afforded their full appeal before a validly appointed appeals officer. The first-named respondent had no jurisdiction to hear the appeal and the applicants should be refused where there was an alternative remedy available.
Held by Hedigan J in refusing the relief sought: The appointment of the original appeals officer had expired and had not been renewed. The respondents had offered a reasonable solution of assigning the appeal to another appeals officer. An appeals officer could not give himself jurisdiction by creating an estoppel.
Judgment of Mr. Justice Hedigan delivered the 28th day of June 2012
1. The first named applicant is a limited liability company which carries on business in the fishing industry and is the registered owner of the M.F.V Atlantic Quest "SO985". The second named applicant is a limited liability company which carries on business in the fishing industry and is the registered owner of the M.P.V. Eternal Dawn "SO958". The first named respondent was appointed an Appeals Officer by the third named respondent in accordance with section 6(1) of the Fisheries (Amendment) Act 2003. The second named respondent is the licensing authority responsible for sea fishing boats. The third named respondent is the Minister with responsibility for Agriculture, Fisheries and Food. The fourth named respondent is an Appeals Officer appointed by the third named respondent in accordance with section 6(1) of the Fisheries (Amendment) Act 2003. The fifth named respondent is the Irish State. The sixth named respondent is sued as legal representative of the fourth and fifth named respondents.
2. The applicants seek the following reliefs.
(i) a declaration that on 31 st March 2011, the first named respondent was validly appointed as Appeals Officer for the purposes of Part III of the Fisheries Amendment Act 2003;
(ii) a declaration that the applicants had a legitimate expectation that the first named respondent was a validily appointed Appeals Officer for the purposes of Part III of the Fisheries (Amendment) Act 2003;
(iii) a declaration that on 31 March 2011, the first named respondent was entitled to hear the applicant's appeal against the Mackerel Authorisation vessel, the MFV Eternal Dawn and Atlantic Quest;
(iv) a declaration that on 31 March 2011, the first named respondent had the power, pursuant to section 18 of the Fisheries (Amendment) Act 2003, to refer questions of law, which arose during the course of the Applicants' appeal, to the High Court for decision;
(v) a declaration that the third named respondent was not entitled to request that the first named respondent return the appeal papers in the in the applicants' appeal to the Second Respondent on the grounds that the first named respondent was not, on 31 March 2011, a validly appointed Appeals Officer for the purposes of Part III of the Fisheries (Amendment) Act 2003;
(vi) an order of certiorari quashing the decision of the third named respondent to direct the first named respondent to return the appeal papers in the applicants' appeal to the second named respondent;
i (vii)an order of certiorari quashing the decision of the second named respondent to forward the papers in the applicant's appeal to the fourth named respondent for the purposes of the fourth named respondent conducting a full rehearing of the applicants' appeal;
(viii) an order of mandamus compelling the first named respondent to refer questions of law, which arose during the course of the applicants' appeal, to the High Court for decision;
(ix) an order of prohibition prohibiting the fourth named respondent from conducting a full rehearing of the applicants' appeal;
2 3.1 These proceedings arise out of a Sea Fishing Boat Licence Appeal. The law governing the independent appeals system for sea fishing boats is contained in Part III of the Fisheries (Amendment) Act 2003 ("the 2003 Act"). The right to appeal is contained in section 7(1) of the 2003 Act which provides:-
a "(a) Subject to paragraph (b), a person aggrieved by a decision of a licensing authority on an application for a licence or by the revocation or amendment of a licence may, before the expiration of a period of one month beginning on the date of that decision, revocation or amendment, appeal to an Appeals Officer against that decision, revocation or amendment by serving on the Appeals Officer a notice of appeal which may be withdrawn by serving a notice to that effect.
(b) A person other than the applicant for or holder of the licence concerned may only appeal under paragraph (a) if he or she made representations in writing to the licensing authority before the decision in question was made."
Section 6(2) provides that appeals shall be considered and determined by Appeals Officers. Section 6(1) provides that:
"The Minister may appoint one or more persons with not less than 5 years' experience as a practising barrister or practising solicitor before his or her appointment as an Appeals Officer ("Appeals Officer") for the purposes of this Part. The Minister may, for stated reasons, remove such person from office."
Section 6(7) provides that the provisions of Schedule 1 of the 2003 Act shall apply to Appeals Officers. Article 1 of Schedule 1 states:
"The term of office of an Appeals Officer shall be 3 years and, subject to paragraph 3, a person may be reappointed to that office for a second or subsequent term."
3 3.2 On 31 st of March 2011 the applicants appealed the granting of authorisations for their respective vessels for the fishing of mackerel. The second named respondent raised a preliminary objection that the first named respondent had no jurisdiction to determine the appeal under the Fisheries (Amendment) Act, 2003 as the matter appealed did not relate to a licence issued by the second named respondent, but rather an authorisation granted by the third named respondent. The first named respondent determined that a case stated should be referred to the High Court pursuant to section 18 of the Fisheries (Amendment) Act 2003. The oral hearing before the first named respondent was adjourned pending the determination by the High Court of the case stated.
4 3.3 On 12 th April 2011 and the 18 th April 2011 the third named respondent requested that the first named respondent furnish the third named respondent with a copy of his warrant of appointment. In a response to correspondence on the 18 th of May 2011 from the applicant's solicitor, the first named respondent on the 22 nd of May 2011 refused to state a case pursuant to section 18 of the Fisheries (Amendment) Act 2003 to the High Court on the grounds that his warrant of appointment had expired.
5 3.4 On 25 th July 2011 an application was made ex parte by the...
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