Donegal Fuel and Supply v Londonderry Harbour Commissioners

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1991 No. 224 J.R.]
• Court: High Court

Donegal Fuel and Supply v. Londonderry Harbour Commissioners

Donegal Fuel and Supply Company Limited, Henry Thompson and Brian Thompson

Applicants

and

The Londonderry Port and Harbour Commissioners, Respondents

Donegal Fuel and Supply v. Londonderry Harbour Commissioners

Donegal Fuel and Supply Company Limited, Henry Thompson, and Brian Thompson

Applicants

and

The Minister for the Marine and The Attorney General, Respondents and The Londonderry Port and Harbour Commissioners, Notice Party

[1991 No. 224 J.R.]

[1991 No. 269 J.R.]

High Court

Statute - Application - Whether relevant pre-1922 statutes survived the enactment of the Constitution of 1922 - Extra-territorial effect - Harbour commissioners - Statutory corporation - Appointment of harbour commissioners - Statutory duty - Powers - Duty to repair pier - Power to make bye-laws - Restriction on user of pier - Whether harbour commissioners in breach of statutory duty - Whether harbour commissioners' powers and duties applied in Ireland - Harbours, Docks, and Piers Clauses Act, 1847 (10 Vict., c. 127) - Londonderry Port and Harbour Acts, 1854 (17 & 18 Vict., c. 177), 1874 (37 & 38 Vict., c. 144), 1882 (45 & 46 Vict., c. 162), and 1920 (10 & 11 Geo. 5, c. 75) - Constitution of Saorstát Éireann éireann, 1922, Article 73.

Judicial review - Whether draft bye-laws ultra vires the Minister - Whether draft bye-laws unreasonable - Time to apply for judicial review - Whether statutory remedies should be exhausted before seeking judicial review.

Public international law - Whether Irish courts can direct foreign corporation in foreign state to carry out statutory duty.

Article 73 of the Constitution of Saorstát Éireann éireann, 1922, provides:—

"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Éireann éireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

The Harbours, Docks, and Piers Clauses Act, 1847, regulated the establishment and management of harbour commissioners generally and defined their powers and duties. Section 33 provided that the public, subject to defined conditions, should have access to docks and piers maintained by the harbour commissioners. By the Londonderry Port and Harbour Acts, 1854, 1874, and 1882, being special private Acts subject to the general Act of 1847, the Londonderry Port and Harbour Commissioners were conferred with duties,inter alia, to maintain the docks and pier at Carrickarory, County Donegal. The harbour commissioners were empowered to restrict user of the pier through bye-laws subject to approval of the Board of Trade. In addition, the harbour master, an officer appointed by the harbour commissioners was empowered to give directions restricting user of the pier.

The Act of 1854, was amended by the Londonderry Port and Harbour Act, 1920, which altered the constitution of the harbour commissioners and provided for the qualification of the electors and harbour commissioners. A radical alteration in the constitution of the harbour commissioners was later effected by order of the Department of Commerce (of the United Kingdom) in 1976, pursuant to the power conferred on the Ministry of Commerce by the Harbours Act (Northern Ireland), 1970, and thereafter the harbour commissioners were appointed under this order and no longer elected as they had been previously under the Act of 1920.

In February, 1977, the harbour master of the Port of Londonderry gave public notice that the pier was to be closed for the discharging and loading of vessels.

In August, 1980, it was announced that substantial repairs having been carried out the pier would be reopened but only for a limited period and for the discharging and loading of vessels of not more than 200ft. in length.

The applicants were coal importers who had formerly used the pier and because it had not been properly repaired they had been unable to use the pier. They therefore sought inter alia an order of mandamus to direct the harbour commissioners to repair the pier.

In June, 1991, the Department of the Environment of Northern Ireland made an order empowering the harbour commissioners to discontinue or abandon the use of any part of the port of Londonderry and its harbour undertaking. Under this power the harbour commissioners resolved to abandon the repair and maintenance of the pier at Carrickarory and gave public notice of this fact in the Derry Journal in September, 1991.

The harbour commissioners further made bye-laws under s. 83 of the Harbour, Docks and Piers Act, 1847, and requested the Minister for the Marine (in this jurisdiction), under s. 48 of the Londonderry Port and Harbour Act, 1882, to approve them. They gave notice in the Donegal Democrat in September, 1991, of their intention to apply to the Minister to allow the bye-laws. The notice indicated that the bye-laws if approved would permit the use of the pier only for vessels of less than 16 metres in length and that objections to the proposed bye-laws should be lodged with the Minister and would be heard by him in a manner to be directed by him.

The applicants then sought inter alia an order of prohibition to stop the Minister from approving the bye-laws.

Held by Costello J., in refusing both applications, 1, that the Harbours, Docks, and Piers Clauses Act, 1847, and the Londonderry Port and Harbour Acts, 1854 to 1920, did not survive the enactment of the Constitution of 1922 and therefore are not part of Irish law. The Oireachtas established by the Constitution of 1922 could not have validly enacted the pre-1922 statutes or part thereof as the financial provisions contained in the statutes would have constituted or amounted to an unjustifiable interference in the internal affairs of the United Kingdom and these financial provisions were not severable from the duties to repair contained therein.

2. That since the statutory duty which the applicants sought to enforce does not exist in Irish law their first claim failed.

3. That the Minister had no function in relation to the approval or rejection of bye-laws and the applicants' second claim failed.

4. That even if the relevant statutes had survived the enactment of the Constitution of 1922 and been carried over into Irish law they had not been amended in Ireland in relation to the appointment of harbour commissioners and as a result there were no persons on whom corporate status could be conferred under the Act of 1854. Therefore there was no statutory corporation in existence and no statutory body against whom an order of mandamus could be made Further, since the body which forwarded the draft bye-laws to the Minister had no corporate entity and no power to do so under Irish law therefore the Minister had no function in relation to them.

5. That the Irish courts have no jurisdiction to order a foreign corporation domiciled in a foreign State to carry out a statutory duty, even one imposed by Irish law.

6. That even if the Irish courts had such a power, the court in its discretion would refuse to make such an order in this instance until such time as the obligations of the harbour commissioners were determined by the approval or rejection of the bye-laws then awaiting the decision of the Minister.

7. That if the Minister had power to approve the bye-laws then the proceedings against him were premature. The Minister would first have to consider representations made to him before approving the draft bye-laws and any objector to the draft bye-laws must first exhaust his statutory remedies before seeking the aid of the court in relation thereto.

8. That the draft bye-laws were not ultra vires the Minister or unreasonable and therefore would not have been prohibited. The Act of 1847 conferred a power to make bye-laws regulating the manner in which any part of the undertaking (including the pier at Carrickarory) might be used and this was what the bye-laws proposed to do.

Cases mentioned in this report:—

Moyne v. Londonderry Port and Harbour Commissioners [1986] I.R. 299.

Waterford Harbour Commissioners v. British Railways Board [1979] I.L.R.M. 296.

Judicial Review

The facts have been summarised in the headnote and are fully set out in the judgment of Costello J., post.

On the 18th October, 1991, the applicants applied to the High Court (Costello J.) and were granted leave to apply by way of judicial review for inter alia an order of mandamus directing the Londonderry Port and Harbour Commissioners to repair the pier at Carrickarory. On the 29th November, 1991, the applicants applied to the High Court (Costello J.) and were granted leave to apply by way of judicial review for inter aliaan order of prohibition directed to the Minister for the Marine to stop the Minister from approving bye-laws made by the Londonderry Port and Harbour Commissioners. The Londonderry Port and Harbour Commissioners were subsequently joined as a notice party to the second application.

The applicants' applications were heard together as the issues involved were closely interlinked. They were heard by the High Court (Costello J.), by way of notices of...