Carberry Fishing Ltd & Fintra Trawling Company Fishing Ltd v Vallely and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 19 December 2011
• Neutral Citation: [2011] IEHC 527
• Court: High Court
• Docket Number: [No. 664 J.R/2011]
• Date: 19 December 2011

[2011] IEHC 527

THE HIGH COURT

[No. 664 J.R/2011]

[No. 665 J.R/2011]

Carberry Fishing Ltd & Fintra Trawling Company Fishing Ltd v Vallely & Ors

BETWEEN

CARBERY FISHING LIMITED

APPLICANT

AND

MICHAEL VALLELY, REGISTRAR GENERAL OF FISHING BOATS, MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, EMILE DALY, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

FINTRA TRAWLING COMPANY FISHING LIMITED

AND

MICHAEL VALLELY, REGISTRAR GENERAL OF FISHING BOATS, MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, EMILE DALY, IRELAND AND ATTORNEY GENERAL

FISHERIES (AMDT) ACT 2003 PART 3

FISHERIES (AMDT) ACT 2003 S19

FISHERIES (AMDT) ACT 2003 S18

GOONERY v MEATH CO COUNCIL & ORS UNREP KELLY 15.7.1999 1999/12/2990 EX TEMPORE

LOCAL GOVT PLANNING & DEVELOPMENT ACT 1992 S19

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128

FISHERIES

Judicial review

Leave - Set aside leave - Appeals officer - Jurisdiction - Whether officer validly appointed - Whether substantial grounds for contending decision invalid - Whether Fisheries Acts contained exclusive remedy for questioning decision of appeals officer - Whether prayers could be validly described as questioning decisions of appeals officer - Goonery v Meath County Council (Unrep, SC, 1/7/2002) followed - KSK Enterprises Ltd v An Bord Pleanála [1994] 2 IR 128 considered - Fisheries (Amendment) Act 2003 (No 21), ss 6, 18 and 19 - Local Government (Planning and Development) Act 1992 (No 14), s 19 - Application dismissed (2011/644JR - Cross J - 19/12/2011) [2011] IEHC 527

Carberry Fishing Ltd v Vallely

Mr. Justice Cross

1 2 1.1 Each of the above cases raise similar points and relate to applications for judicial review seeking various declaratory relief.

2 3 1.2 The declarations result from the first named respondent embarking as an Appeals Officer for the purposes of Part 3 of the Fisheries (Amendment) Act 2003 and agreeing to state a case pursuant to the Act and prior to him signing the case stated, being advised by the State that he was not any longer a validly appointed Appeals Officer.

3 4 1.3 On 25^th July, 2011, leave for judicial review was granted ex parte by Peart J.

4 5 1.4 The second, third, fourth and fifth named respondents seek an order in these motions setting aside the application for leave.

5 6 1.5 The basis of the application is that the provisions of s. 19 of the Fisheries (Amendment) Act 2003, set out a procedure for challenging or questioning decisions of the Appeals Officers and these procedures in effect provide for a three month time limit and that the notice of motion should be served upon the parties and leave should not be granted unless the court is satisfied that there are "substantial grounds for contending that the decision is invalid or ought to be quashed".

6 7 1.6 It is contended that this section provides that the exclusive remedy for questioning decisions of the Appeals Officer and that a number of the reliefs sought by the applicant in these proceedings do, in effect, question a decision of the Appeals Officer and accordingly both those and all the other reliefs applied for must fail.

2003

7 2 2.1 Section 19 provides insofar as it is relevant as follows:-

8 2 "(1) A person shall not question a decision of an Appeals Officer on an appeal otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (in this section referred to as 'the Order').

9 (2) An application for leave to apply for judicial review under the Order in respect of a decision of an Appeals Officer -

10 (a) shall be made within the period of 3 months commencing on the date on which the decision was made, and

11 (b) shall be made by notice of motion (grounded in the manner specified in the Order in respect of anex parte motion for leave) which shall be served on an Appeals Officer and each party or each other party, as the case may be, to the appeal, or any other person specified for that purpose by order of the High Court, and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed...."

12 2 3.1 The facts of the substantive matter are not essentially an issue. The first named respondent undertook an oral hearing in relation to the terms of a license granted to the applicant and this hearing commenced on 31^st March, 2011, at which the second named respondent raised a preliminary objection that the first named respondent had no jurisdiction to determine the appeal under the 2003 Act as the matter appeals was not a license issued by the second named respondent but rather an authorisation granted by the third named respondent.

13 3 3.2 Having heard submissions by both parties on the definition of "licensing authority" for the purposes of the 2003 Act, the first named respondent exceeded to the applicant's request to refer the matter to the High Court for determination pursuant to s. 18 of the Fisheries (Amendment) Act 2003 by way of case stated and the hearing was then adjourned pending the determination.

14 4 3.3 The fourth named respondent on 31^st March, 2011, sent both parties draft questions for determination of the High. Court with request that any comments be submitted to him by 6^th April, 2011. There followed a discussion between the parties as who should have carriage of the case and by email dated 22^nd May, 2011, the first named respondent advised the applicant that he was unable to proceed with the case stated as:-

"It appears that certainly when I made a decision to state a case to the High Court there was no challenge to my jurisdiction. However after April 15^th the State have questioned my appointment and certainly it appears that my warrant of appointment had expired."

15 Therefore as the case stated was not signed by me at this stage, I cannot see how I can now sign and state it where I am on full notice that I do not appear to have capacity at this stage."

16 5 3.4 In the main judicial review proceedings the applicants claimed a number of declaratory reliefs:-

17 (i) a declaration that on 31^st March, 2011, the first named respondent was a validly appointed Appeals Officer for the purpose of Part 3 of the Fisheries (Amendment) Act 2003;

18 (ii) a declaration that the applicant had a legitimate expectation that the first named respondent was a validly appointed Appeals Officer for the purpose of Part 3 of the Fisheries (Amendment) Act2003;

19 (iii) a declaration that on 31^st March, 2011, the first named respondent was entitled to hear the applicant's appeal against the mackerel authorization number M/199429288/2010 issued to the applicant's vessel the MVF 'Atlantic Quest' S0985;

20 (iv) a declaration that on 31^st March, 2011, the first named respondent had the power pursuant to s. 18 of the Fisheries (Amendment) Act 2003 to reefer the following questions of law which arose during the course of the applicant's appeal to the High Court for decision;

'Q.1	Is the Minister for Agriculture, Fisheries and Food a licensing authority for the purposes of the Fisheries (Amendment) Act2003?
Q.2	If the answer to 1 is yes, then does an Appeals Officer appointed under the Fisheries (Amendment) Act, have they jurisdiction to hear appeals from his authorisations?'

21 (v) a declaration that the third named respondent was not entitled to request that the first named respondent to return the appeal papers in the applicant's appeal to the second named respondent on the grounds that the first named respondent was not, on 31^st March, 2011, validly appointed Appeals Officer for the purpose of Part 3 of the Fisheries (Amendment) Act 2003;

22 (vi) an order ofcertiorari quashing the decision of the third named...