Dunne v Minister for Fisheries

• Jurisdiction: Ireland
• Judgment Date: 10 February 1984
• Date: 10 February 1984
• Docket Number: [1981 No. 576 Sp.]
• Court: High Court

High Court

[1981 No. 576 Sp.]

Dunne v. Minister for Fisheries

John Dunne and Others

Appellants

and

The Minister for Fisheries and Forestry

Respondent

Cases mentioned in this report—

¹ Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560.

² Minister of National Revenue v. Wrights' Canadian Ropes Ltd. [1947] A.C. 109.

³ Dodd v. Minister for Fisheries [1934] I.R. 291.

High Court - Jurisdiction - Appeal - Ministerial order - Person aggrieved - Scope of court's appellate jurisdiction - Minister purporting to protect fisheries of the State - Order removing prohibition against use of drift nets for taking salmon - Order annulled - Fisheries (Consolidation) Act, 1959 (No. 14), ss. 8, 9, 11.

Special Summons.

On the 7th July, 1981, the plaintiffs issued a summons in the High Court and therein appealed against an order made by the respondent, the Minister for Fisheries and Forestry, on the 3rd June, 1981, and entitled the South Western Fisheries Region Bye-Law No. 260 1981; and the plaintiffs claimed an order annulling the respondent's order pursuant to s. 11, sub-s. 1(d), of the Fisheries (Consolidation) Act, 1959. Prior to the respondent's order of 1981, fishing for salmon by using drift nets in the tidal waters of most of the Kerry District Fishery (being part of the South Western Fisheries Region) was prohibited by three statutory orders that had been made in the year 1913. The effect of the respondent's order of 1981 was to revoke that prohibition. The plaintiffs were officers of the Kerry Salmon and Sea Trout Protection Federation and they claimed to be persons aggrieved by the respondent's order of 1981.

Section 11, sub-s. 1, of the Act of 1959 provides—

"(1) The following provisions shall apply in relation to any instrument to which this section applies . . .

• (d) any person aggrieved by such instrument may, within twenty-eight days after the publication in the Iris Oifigiúil, appeal against such instrument to the High Court, and the following provisions shall apply in relation to any such appeal—

  • (i) the appeal may be heard by one or more judges of the High Court as may be convenient,

  • (ii) the High Court may on the appeal confirm or annul such instrument, but if such instrument is annulled such annulment shall be without prejudice to the validity of anything done under or in pursuance of such instrument before such annulment,

  • (iii) the decision of the High Court on the appeal shall be final and conclusive . . ."

Sub-section 2 of s. 11 states that the section applies to any instrument being (inter alia) a bye-law made under the Act of 1959. The respondent's order of 1981 was made in exercise of his powers conferred by s. 9 of the Act of 1959. Sub-section 1 of s. 9 states that the Minister for Fisheries and Forestry may, in addition to the power of making bye-laws conferred on him by any other section of the Act and subject to the provisions thereof, make "such bye-laws as are in his opinion expedient for the more effectual government, management, protection and improvement of the fisheries of the Stat" and that, without prejudice to the generality of the foregoing, he may make bye-laws in relation to all or any of the following matters:— "(a) the regulation of the fisheries of the State and the preservation of good order amongst the persons engaged therein . . . (d) the description and form of nets to be used in the said fisheries and the size of the meshes thereof, (e) the prohibition of the use of nets, (f) the prohibition of the use at any time of any fishing engine which is in the opinion of the Minister injurious to the fisheries, (g) the prohibition of any practice whatsoever tending in the opinion of the Minister to impede the lawful capture of fish or to be in any manner detrimental to the said fisheries, (h) any other matter or thing relating in any manner to the government and protection of the said fisheries."

Before making the order of 1981, the respondent had caused an inquiry to be held pursuant to s. 8, sub-s. 1, of the Act of 1959. That sub-section provides:—

"(1) The Minister may from time to time cause an inquiry to beheld in any fishing district in relation to the fisheries therein or any of them and the best means to be adopted for the regulation, improvement or protection thereof, and for this purpose may appoint an officer of the Minister to hold such inquiry."

The inquiry was held in Killarney by a senior inspector in the respondent Minister's department on the 28th-30th October, 1980.

The appellants' summons was heard by Costello J. on the 11th and 12th January, 1984.

Section 9 of the Act of 1959 confers on the Minister for Fisheries and Forestry power to make such bye-laws as are in his opinion expedient "for the more effectual government, management, protection and improvement of the fisheries of the State." Section 8 of the Act states that the Minister may cause an inquiry to be held in any fishery district in relation to the fisheries therein and "the best means to be adopted for the regulation, improvement or protection thereof." The respondent Minister caused an inquiry to be held by a senior inspector of his department concerning salmon fishing off the coast of the county of Kerry, with particular reference to the justification for certain bye-laws, made in the year 1913, which prohibited taking salmon with drift nets in the tidal waters of a specified area off that coast. In his report to the respondent Minister, the senior inspector who had conducted the inquiry strongly advised the respondent against revoking the said bye-laws which prohibited salmon fishing with drift nets in that area. Nevertheless, on the 3rd June, 1981, the respondent made an order pursuant to s. 9 of the Act of 1959 revoking the said bye-laws and thus removing the prohibition against such fishing in most of the Kerry District Fishery.

The appellants, claiming to be persons aggrieved by the effect of the respondent's revocation order, appealed to the High Court against that order and claimed an order pursuant to s. 11 of the Act of 1959 annulling the revocation order. At the hearing of the appeal the respondent refused to admit the report of the senior inspector and the judge then allowed the appellants to call the inspector to give evidence; in his oral evidence the inspector proved his report and two memoranda which he had also furnished to the respondent before the revocation order was made. The appellants gave evidence in support of their claims to be persons aggrieved.

Held by Costello J., in allowing the appeal, 1, that s. 11 of the Act of 1959 conferred jurisdiction on the Court to determine the appeal on the merits.

Dodd v. Minister for Fisheries [1934] I.R. 291; Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560 and Minister of National Revenue v. Wrights' Canadian Ropes Ltd.[1947] A.C. 109 considered.

2. That the issue raised by the appeal was whether the terms of the respondent's revocation order were expedient for "the more effectual government, management, protection and improvement of the fisheries of the State."

3. That the Court would normally determine that issue upon the evidence and other relevant material which had been available to the respondent when he made the revocation order.

4. That the Court would have regard to the probable consequences of the revocation order, including its effect upon fishery areas outside the area immediately affected by its provisions.

5. That, contrary to the averment in the affidavit filed on behalf of the respondent, there had been no "volume of expert technical advice" available to the respondent before he made the revocation order, apart from the report and advice of his senior inspector; and that the suggestion in that affidavit that the opinion formed by the respondent had been supported by expert technical advice was contrary to the fact.

6. That the overwhelming weight of the scientific evidence led to the conclusion that the revocation order was not expedient for the more effectual government, management, protection and improvement of the fisheries of the State; and that, accordingly, that bye-law should be annulled.

7. That the appellants were persons aggrieved, within the meaning of that term in s. 11 of the Act of 1959, by the revocation order.

Cur. adv. vult.

Costello J.

The appellants claim that they are aggrieved by the South Western Fisheries Region Bye-Law No. 260 1981 which was made by the respondent Minister on the 3rd June, 1981; they ask that the bye-law be annulled. The bye-law relates to drift-net fishing for the capture of salmon off the Kerry coast. Prior to its making, there were three bye-laws in force relating to tidal waters in an area 12 miles off the coast between Dunmore Head on the north side of Dingle Bay and Crowe Head on the north side of Bantry Bay. The first of these bye-laws was made on the 29th September, 1913, and prohibited the use of any drift nets for the capture of salmon or trout in the tidal waters of a district then designated No. 6(3) or Kenmare District. A second bye-law, made on the same day, contained a similar prohibition in the tidal waters of a district designated No. 7(2) or Waterville District. A third was made on the 7th April, 1913, and it prohibited the use of drift nets for the capture of salmon in a district designated No. 7(1) or Killarney District, I will refer to these bye-laws collectively as the 1913 bye-laws; all three were revoked by the new bye-law. Containing, as it does, only a very limited prohibition on drift netting close to the shore, the effect of the bye-law of 1981 was to open up very large tracts of water off the Kerry coast for the drift-net fishing of salmon and to abolish the sanctuary area which had existed there for nearly 70 years.

Before he made the bye-law of 1981, the respondent Minister had caused a public enquiry to be held pursuant to s. 8 of the Fisheries (Consolidation) Act,...