Dunmanus Bay Mussels Ltd v Acquaculture Licences Appeals Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 10 May 2013
• Neutral Citation: [2013] IEHC 214
• Court: High Court
• Docket Number: [2012 No. 939 JR]
• Date: 10 May 2013

[2013] IEHC 214

THE HIGH COURT

[No. 939 JR/2012]

Dunmanus Bay Mussels Ltd v Acquaculture Licences Appeals Board & Ors

BETWEEN/

DUNMANUS BAY MUSSELS LIMITED

APPLICANT

AND

ACQUACULTURE LICENCES APPEALS BOARD

RESPONDENT

AND

THE DUNMANUS BAY MARINE ASSOCIATION, FRIENDS OF THE IRISH ENVIRONMENT, VICTOR MORGAN, LYNDA MORGAN, ROBERT PUTZ AND THE ASSOCIATION OF DUNMANUS BAY FISHERMEN

NOTICE PARTIES

FISHERIES (AMDT) ACT 1997 S73(2)

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128

GOONERY v MEATH CO COUNCIL UNREP KELLY 15.7.1999 1999/12/2990

MONAGHAN UDC v ALF-A-BET PROMOTION LTD 1980 ILRM 64

MURPHY v GREENE 1990 2 IR 566 1991 ILRM 404 1991 ILT 146

MENTAL TREATMENT ACT 1945 S260

MJBCH LTD, IN RE (IN LIQUIDATION) UNREP FINLAY-GEOGHEGAN 15.4.2013 2013 IEHC 256

COMPANIES ACT 1963 S222

WHITE v DUBLIN CITY COUNCIL 2004 1 IR 545

CROPPER v SMITH 1884 26 CH 700

DPP v CORBETT 1992 ILRM 674

CROKE v WATERFORD CRYSTAL LTD 2005 2 IR 383

KEEGAN v GARDA OMBUDSMAN COMMISSION UNREP SUPREME 1.5.2012 2012/20/5800 2012 IESC 29

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 2000 (2000) 2 IR 360

RSC O.28 r1

RSC O.125 r1

A (K) v MIN FOR JUSTICE 2003 2 IR 93

EEC DIR 85/337

JUDICIAL REVIEW

Practice and procedure

Motion to amend originating notice of motion - Application for leave initially made ex parte - Statutory requirement to apply on notice - Consequences of failure to strictly comply with statutory requirement - Error - Order setting aside ex parte leave - Motion seeking to amend notice of motion - Effect of non-compliance with statutory requirements - Whether failure rendered proceedings so manifestly irregular that entire nullity - Whether leave to amend ought be granted - Power to amend - KSK Enterprises Ltd v An Bord Pleanála [1994] 2 IR 128; Goonery v Meath County Council (Unrep, Kelly J, 15/7/1999); Monaghan UDC v Alf-A-Bet Promotions Ltd [1980] ILRM 64; Murphy v Greene [1990] 2 IR 566; Re MJBCH Ltd (in liquidation) [2013] IEHC 256, (Unrep, Finlay Geoghegan J, 15/4/2013); White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545; Cropper v Smith (1884) 26 Ch D 700; Director of Public Prosecutions v Corbett [1992] ILRM 674; Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383; Keegan v Garda Siochána Ombudsman Commission [2012] IESC 28, (Unrep, SC, 1/5/2012); Re Article 26 and the Illegal Immigrants (Trafficking) Bill 2000 [2000] 2 IR 360 and KA v Minister for Justice [2003] 2 IR 93 considered - Fisheries (Amendment) Act 1997 (No 23), s 73 - Rules of the Superior Courts 1986 (SI 15/1986), O 28, r 1 and O 125, r 1 - Amendment permitted (2012/9393JR - Hogan J - 10/5/2013) [2013] IEHC 214

Dunmanus Bay Mussels Limited v Aquaculture Licences Appeals Board

Facts The applicant had sought leave to apply for judicial review of a decision by the respondent to refuse it an aquaculture licence. The applicant made an ex-parte application to the court and subsequently served the relevant parties. However the applicant neglected to make the subsequent application on notice in court to the relevant parties in accordance with the relevant legislation (section 73(2) of the Fisheries (Amendment) Act, 1997). On behalf of the applicant it was admitted the relevant statutory requirements were overlooked and sought to amend its originating notice of motion in order to comply with the relevant provisions. It was submitted on behalf of the opposing parties that the irregularity was so grievous that the court did not have the capacity to amend same and that the proceedings were, accordingly, a nullity.

Held by Hogan J in allowing the application: The respondent and the notice parties had all been served with the proceedings within the relevant three month period. Were the amendment to be permitted the respondent, the notice parties would then have the opportunity to oppose the grant of leave. Not to allow the amendment would amount to a manifestly disproportionate interference with the applicant"s constitutional right of access to the courts. Once the relevant objectives had been achieved (that potential respondents receive adequate notice of a claim) it could be inferred that the Oireachtas had no interest in seeing that applicants were struck out in limine merely by reason of a non-compliance with statutory requirements.

1 JUDGMENT of Mr. Justice Hogan delivered on the 10th May, 2013

2 1. A statutory requirement that applicants applying for leave to apply for judicial review of certain types of specified administrative decisions must do so on notice to potential respondents and notice parties is one of the striking innovations with which the Oireachtas has experimented with in the last two decades or so. The object of these statutory requirements is plainly to give potential respondents and notice parties advance notice of such applications and to afford them a timely opportunity to put forward their case prior to any decision being taken regarding the grant of leave to apply for judicial review. It was obviously considered that an early inter partes hearing would assist the court in isolating at any early stage cases that were unmeritorious and which had no realistic prospect of succeeding or where the grant of leave might prove improvident or otherwise unfairly impact on fair and effective administration.

3 2. One feature of the new statutory regimes governing applications for judicial review was that they invariably created new jurisdictional pitfalls for potential applicants, not least where (as here) the requirement that the application be moved on notice has actually been overlooked. Where, then, an applicant has failed strictly to comply with these statutory requirements-in this instance, the requirements specified by s. 73(2) of the Fisheries (Amendment) Act 1997 ("the 1997 Act")-what should be the consequences of such failure? That, in essence, is the question posed by this application for judicial review.

4 3. The present case may be said to commence with the decision of the Minister for Agriculture, Food and Marine to grant the applicant company ("Dunmanus Bay Mussels") an acquaculture licence to cultivate mussels using longlines in a certain part of the foreshore in Dunmanus Bay. The notice parties all appealed this decision and on 24 ^th September 2012 the Acquaculture Licences Appeals Board ("the Board") made a decision to refuse to grant Dunmanus Bay Mussels the relevant licence.

5 4. The applicant company sought to commence judicial review proceedings with a view to having this decision quashed. To that end an application was made ex parte to this Court (Peart J.) on 19 ^th November, 2012, and leave to apply for judicial review-was duly granted. In accordance with the usual practice, Dunmanus Bay Mussels then arranged to have an originating notice of motion issued pursuant to that leave served on the Board and the other relevant notice parties. This service was effected on all relevant parties by 27 ^th November, 2012, at the latest. The motion claimed the reliefs which would be sought at the main hearing, but it made no reference to the requirement to seek leave on notice to the Board and the notice parties.

6 5. Section 73(2) of the 1997 Act requires, however, that any such application for leave should be on notice to the Board and to the relevant notice parties. The sub-section provides:

7 2 "(2) An application for leave to apply for judicial review under the Order in respect of a decision or determination referred to in subsection (1)-

8 (a) shall be made within the period of three months commencing on the date on which the decision or determination was made, and

9 (b) shall be made by notice of motion (grounded in the manner specified in the Order in respect of an ex parte motion for leave) which shall be served on-

10 (i) if the application relates to a decision on an application for a licence, the Minister or the officer of the Minister by whom the decision was made, as the case may be, and where the applicant for leave is not the applicant for the licence, it shall also be served on the applicant for the licence,

11 (ii) if the application relates to a determination referred to in subsection (1) (b), the Board and each party or each other party, as the case may be, to the appeal, or

12 (iii) 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 or determination is invalid or ought to be quashed."

13 6. It will be seen, therefore, that what is critical is that the application for leave is actually made on notice to the relevant parties within the three month period. It is not, however, essential that the application is heard within that period, because the question of whether the initial application for leave on notice had been validly made could not be made to be dependent on the vicissitudes of the court listing system and whether the matter was actually listed or hearing (or even heard) by a particular day: cf. here by analogy the reasoning of Finlay C.J. in KSK Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128, 136.

14 7. The applicant's counsel, Mr. McDonagh S.C., has candidly admitted that the reason why no prior leave on notice to the respondents and notice parties was sought was because the requirements of s. 73(2) of the 1997 Act were overlooked. This was first brought to their attention in a letter from the Board's solicitors on 21 ^st January, 2013. At that point, having realised its error, the applicant company then immediately applied to Kearns P. to have that original ex parte order set aside as having been improvidently granted. Kearns P. made an order to that effect on 22 ^nd January, 2013.

15 8. At that juncture Dunmanus Bay Mussels then issued the present motion...