O'Connell v South Western Regional Fisheries Board

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Carroll
• Judgment Date: 15 April 1986
• Neutral Citation: 1986 WJSC-HC 1302
• Docket Number: No. 2450 P/1983
• Date: 15 April 1986

O'CONNELL v. SOUTH WESTERN REGIONAL FISHERIES BOARD

BETWEEN:

DONAL BRENDAN O'CONNELL

PLAINTIFF

AND

SOUTH WESTERN REGIONAL FISHERIES BOARD IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

1986 WJSC-HC 1302

No. 2450 P/1983

THE HIGH COURT

Synopsis:

WORDS AND PHRASES

"May"

Power - Exercise - Discretion or duty - Conferment of benefit - Application to defendant board for licence to sell salmon - Held that defendant had a discretion to refuse to issue a licence to plaintiff applicant - ~See~ Statutory Interpretation, power - (1983/2450 P - Carroll J. - 15/4/86)

|O'Connell v. S.W. Regional Fisheries Board|

STATUTORY INTERPRETATION

Power

Exercise - Discretion or duty - Conferment of benefit - Licence to sell salmon - Discretionary power or mandatory duty of defendant board to issue licence to plaintiff applicant - Scheme of statute - Application to District Justice, on notice to defendant board, for certificate of fitness - No appearance by defendant - Certificate granted to plaintiff company - Expired licence held by director of plaintiff company - Application by plaintiff company, accompanied by prescribed fee and the certificate, to defendant board for renewal of the licence - Statute providing that defendant "may issue" licence in certain circumstances - Refusal of defendant to issue licence - Purpose of statute being protection of salmon fisheries as well as conferment of benefits by granting licences - Held that the defendant had a discretion to refuse to issue a licence to a person who had been certified by the District Court as being fit to hold one - Held also that the plaintiff company's application to the defendant was misconceived in seeking a renewal of a licence instead of a new licence - Fisheries (Consolidation) Act, 1959, ss.158, 159 - (1983/2450 P - Carroll J. - 15/4/86)

|O'Connell v. S.W. Regional Fisheries Board|

Citations:

CUSTOMS CONSOLIDATION ACT 1876 S24

CUSTOMS CONSOLIDATION ACT 1876 S25

DOLAN V NELIGAN 1967 IR 247

DUNNE, IN RE 1968 IR 105

FISHERIES (AMDT) ACT 1962 S14

FISHERIES (CONSOLIDATION) ACT 1959 PART X

FISHERIES (CONSOLIDATION) ACT 1959 S158

FISHERIES (CONSOLIDATION) ACT 1959 S159

FISHERIES (CONSOLIDATION) ACT 1959 S159(1)

FISHERIES (CONSOLIDATION) ACT 1959 S159(5)

FISHERIES (CONSOLIDATION) ACT 1959 S160

FISHERIES (CONSOLIDATION) ACT 1959 S161

FISHERIES (CONSOLIDATION) ACT 1959 S161(1)

FISHERIES (CONSOLIDATION) ACT 1959 S161(2)

FISHERIES (CONSOLIDATION) ACT 1959 S161(3)

FISHERIES (CONSOLIDATION) ACT 1959 S163

FISHERIES (CONSOLIDATION) ACT 1959 S182(2)(b)

FISHERIES (CONSOLIDATION) ACT 1959 S245

FISHERIES (CONSOLIDATION) ACT 1959 S247

FISHERIES (CONSOLIDATION) ACT 1959 S280

FISHERIES (CONSOLIDATION) ACT 1959 S309

FISHERIES (CONSOLIDATION) ACT 1959 S71

FISHERIES (CONSOLIDATION) ACT 1959 S72

FISHERIES (CONSOLIDATION) ACT 1959 S74

FISHERIES (CONSOLIDATION) ACT 1959 S76

FISHERIES (CONSOLIDATION) ACT 1959 S83

FISHERIES (SALMON DEALER'S LICENCE) REGS SI 36/1981

FISHERIES ACT 1980 S11

FISHERIES ACT 1980 S49

FISHERIES ACT 1980 S6(1)

FISHERIES ACT 1980 SCH 1

FISHERIES ACT 1980 SCH 4

INTOXICATING LIQUOR ACT 1960 S13

INTOXICATING LIQUOR ACT 1960 S19

INTOXICATING LIQUOR ACT 1960 S19(1)

INTOXICATING LIQUOR ACT 1960 S19(2)

IRISH FAMILY PLANNING V RYAN 1979 IR 295

JULIUS V LORD BISHOP OF OXFORD 5 AC 214

ROYAL KILMAINHAM HOSPITAL, IN RE 1966 IR 451

SALMON LEVY, LICENCED SALMON DRS REGRS & SALMON & TROUT RECDS REGS SI 142/1980

Miss Justice Carroll

1 This case concerns the power of a Fisheries Board to refuse to issue a Salmon Dealer's Licence where a Certificate of Fitness has been granted by a District Justice in accordance with section 158 of the Fisheries (Consolidation) Act1959(the 1959 Act).

The facts are as follows:-

2 In 1978 the Plaintiff, Mr. O'Connell, acquired the company, Waterfall Foods Limited which had a Salmon Dealer's Licence. In 1981 he applied for the licence in his own name. This licence expired on the 31st of December 1981 as specifically provided by section 159 (5) of the 1959 Act. A notice dated the 1st February 1982, addressed to the Plaintiff personally, was sent saying that the closing date for renewal of applications had passed on 31st of January and he was advised that he was not entitled to buy or sell, etc., salmon or trout at any place. He was told that if he required a Salmon Dealer's Licence for the 1982 season he should apply for a new Dealer's Licence under section 159 of the 1959 Act as amended by section 14 of the Fisheries (Amendment) Act1962(the 1962 Act).

3 On the 24th of May 1982 he applied in the name of the company to the District Court for a Certificate of Fitness under section 158 of the 1959 Act. Under section 14 of the 1962 Act notice had to be given to the Fisheries Board fourteen days before the hearing. The application was returnable for the 15th of June 1982 and there was no appearance by the Board. The Certificate of Fitness was granted by the District Justice. The Plaintiff applied on the 28th of June 1982 for the renewal of a licence enclosing an application in the name of the company and the Certificate of Fitness and a cheque for £25-00 to cover the fee. The application was for a renewal and was not in the required form for a new licence as set out in the Fisheries (Salmon Dealer's Licence) Regulations 1981 ( S.I. No. 36 of 1981).

4 The Plaintiff sent a reminder to the Board on the 13th of July 1982 and telephoned on the 15th of July 1982 when he was told that no decision would be taken until the 14th of August 1982. No licence was in fact granted.

5 Criminal proceedings dated the 8th of February 1983 were commenced in the District Court against the Plaintiff by the Defendant on foot of eight summonses with the following charges (summarised)

6 (1) buying 210 salmon between the 13th of August 1982 and 20th of August 1982 without a licence

7 (2) having in his control on the 20th of August 1982 210 salmon unlawfully captured

8 (3) keeping for sale 590 salmon without a licence on the 20th of August 1982

9 (4) buying 111 salmon between the 20th of August 1982 and the 25th of August 1982 without a licence

10 (5) obstructing fishery officers in the exercise of their statutory powers on the 20th of August 1982

11 (6) having in his possession on the 25th of August 1982 111 salmon unlawfully captured

12 (7) keeping for sale 111 salmon without a licence on the 25th of August 1982

13 (8) obstructing fishery officers in the exercise of their statutory powers on the 25th of August 1982.

14 In these proceedings, which were commenced on the 12th of April 1983, the Plaintiff originally claimed that section 182 (2) (b) of the 1959 Act was invalid having regard to the provisions of the Constitution and contrary to natural justice in placing the onus of proving innocence on the Plaintiff, and further that section 309 of the 1959 Act as amended by section 49 of the Fisheries Act1980(the 1980 Act) was invalid having regard to the provisions of the Constitution in purporting to deprive the Plaintiff of a trial by jury. He also claimed that the Defendant was obliged to issue the licence to the Plaintiff and sought an Order restraining the Defendant from prosecuting the charges in the District Court.

15 The Plaintiff abandoned his claim that the named sections of the Act were unconstitutional and the action against Ireland and the Attorney General was struck out by consent.

16 A single issue was agreed between the parties for the Court to decide namely:-

17 "Whether the words "may issue" in section 159 of the Fisheries (Consolidation) Act1959are mandatory or whether in the alternative, the Board of conservators are left with a discretion under the Act to refuse to issue a licence, notwithstanding compliance by the applicant with all the matters prescribed in section 159 (1) (a) and (b) of the Act."

18 The company was joined as a co-plaintiff by Order of the Court.

19 The following are sections 158 and 159 of the 1959 Act as amended by the 1980 Act with the amendments as set out in the table to the Fourth Schedule of that Act, paragraphs 28 and 29, and with the deletions specified in section 6 (1) and First Schedule of the 1980 Act.

Section 158

20 Where a person who carries on or proposes to carry on the business of selling salmon and trout or of exporting for sale salmon and trout in a particular Court District applies to the District Justice for the time being assigned to that Court District for a certificate under this section, such District Justice, if satisfied that such person is a fit and proper person to hold a Part X licence, shall grant him a certificate in writing to that effect.

Section 159

(1) Where-

21 (a) a person to whom a certificate of fitness has been granted applies, within twenty-eight days after such grant, to the regional board for the issue to him of a licence authorising him to carry on the business of selling salmon and trout at any specified place or places within such board's fisheries region and

(b) there is sent with the application-

(i) such certificate of fitness, and

(ii) the sum of £25,

22 then, such board may issue to such person such licence.

(2) Where-

23 (a) a person to whom a certificate of fitness has been granted applies, within twenty-eight days after such grant, to the regional board for the issue to him of a licence authorising him to carry on the business of exporting for sale salmon and trout from any specified place or places within such board's fisheries region,

(b) there is sent with the application-

(i) such certificate of fitness, and

(ii) the sum of twenty five pounds,

24 then, such board may issue to such person such licence.

25 (3) Every application for a Part X licence to a board shall-

(a) be made in writing

26 (b) be in the prescribed form and contain the prescribed particulars.

27 (4) Every Part X licence shall be in the prescribed form.

28 (5) Every...