Cross River Ferries Ltd v Port of Cork Company

JurisdictionIreland
CourtHigh Court
JudgeO'Sullivan J.
Judgment Date06 May 1999
Neutral Citation[1999] IEHC 153
Docket NumberNo. 189JR/1998
Date06 May 1999

[1999] IEHC 153

THE HIGH COURT

No. 189JR/1998
CROSS RIVER FERRIES LTD. v. CORK PORT COMPANY

BETWEEN

CROSS RIVER FERRIES LIMITED
APPLICANT

AND

PORT OF CORK COMPANY
DEFENDANT

Citations:

HARBOURS ACT 1946

HARBOURS ACT 1996

C W SHIPPING V LIMERICK HARBOUR COMMISSIONERS 1989 ILRM 416

LYNCH, STATE V COONEY 1982 IR 337

UNITED STATES TOBACCO INTERNATIONAL INC V MIN FOR HEALTH 1990 1 IR 394

BURKE V MIN FOR LABOUR 1979 IR 354

Synopsis

Admistrative Law

Declaration; fair procedures; constitutional justice; management of port; delegated power to impose charges on vessels operating ferry service; whether the charges were invalid; whether applicants should have been consulted and given notice in relation to charges; whether audi alteram partem principle applies to the making of delegated legislation Held: Application dismissed Cross River Ferries Limited v. Port of Cork Company - High Court: O'Sullivan J. - 06/05/1999

The respondent had the power to impose charges and had imposed charges which were reasonable. The respondent was not required to consult any party who might be effected by the charges. The fact that the applicant was the only party effected by the charges did not alter the position; the nature of legislation remains the same whether it applies to one or many. The High Court so held in dismissing the application.

O'Sullivan J.
1

The Plaintiff operates a two vessel ferry service for passengers and vehicles between Glenbrook and Carrigaloe near the mouth of the river Lee.

2

The Defendant is a company established under the Provisions of the Harbours Act.1996and is charged thereunder with the management, control, operation and development of Cork Harbour.

3

On the 23d of December, 1997 the Applicant received from the Respondent a letter enclosing a Schedule of charges which were to come into effect on the 1st of January, 1998. This Schedule included a charge of 25p per tonne per day on vessels operating a passenger ferry within the port. The Applicants say that this amounts to a new charge of some 1,20,000 per annum per vessel on their ferry service, the Respondents emphasise that it approximates to 5p per vehicle or some £56.25 per day

4

The Applicants were not consulted in advance in relation to these charge not were they given any notice apart from the letter received on the 23rd of December. They say they were entitled to notice and they were entitled to be consulted in advance and to have their submissions attentively listened to and taken into consideration by the Respondent in calculating the new charges.

5

They say that they are the only operator in the Cork harbour area which will have to pay this particular charge and that this makes it all the more incumbent on the Respondent to have consulted them in advance.

6

Their Counsel, Mr. Paul Sreenan S.C. abjures any argument to the effect that there in no legislative authority vested in the Respondent enabling in to impose these charge or unreasonable. His single point is that there was a want of fair procedures which he submits applies to the imposition of the charges an this cast which entitles him to a declaration that the charges imposed are invalid

7

Mr. Sreenan submitted that it is a matter of general principle that an administrative procedure likely to result in a significant charge affecting the livelihood of an operator such as his client is subject to the application of the due process principles.

8

These principles apply all the more emphatically when, as in this case, the consequence of failure to pay the charge is to expose his client to criminal sanction with significant attendant penalties (including a large maximum fine fine, a two year maximum prison sentence and the sale of his client's vessels in certain circumstances).

9

The want of an appeals procedure made the necessity for initial fair procedures all the more emphatic.

10

In support of these propositions he relied on the fact that the earlier (1946). Harbours Act did provide for public consultation and input prior to the imposition of analogous charges and explained the disappearance. So to speak, of this feature from the 1996. Net by reference to the intervening body of Irish ease law dealing with the application of natural justice principles.

11

His clients, he submitted, were exercising their common law right to navigate tidal waters and he submitted that it was inherent that any delegated power to impose such a charge under our constitution contains an implicit requirement to observe fair procedures in circumstances such as the present which specifically include a right to be notified in advance and to be heard before the charges are fixed.

12

In reliance on these submissions he referred me to a number of case including C.W. Shipping -v- Limerick Harbour Commissioners [1989 I. R.L M.: 416]: The State (Lynch -v- Cooney & Another [1982: I.R.: 337]: United States Tobacco International Inc. and Anor, -v- Minister for Health and Ors. [1990: I : I.R: 394]: and Burke -v- Minister for Labour [1979:I.R.: 354].

13

The latter case involves a challenge on behalf of employers in the hotel industry to a Labour Court recommendation, fixing a statutory minimum wage. The Mechanism under the Industrial Relations Act.1946was that a Joint Labour Committee could recommend a minimum wage or an amendment to a minimum wage to the Labour Court which could adopt such a recommendation. In the particular case the Joint Labour Committee had considered a motion by the employees' representative for the replacement of a previous Labour Court Order. An amendment was tabled by the employer's representatives seeking to have their submissions considered and adopted, was defeated and it...

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