Healy -v- Minister for Communications & Ors,  IEHC 258 (2009)
|Docket Number:||2008 905 JR|
|Party Name:||Healy, Minister for Communications & Ors|
THE HIGH COURT2008 905 JR
Minister for Communications, Fisheries and Natural Resources,
Minister for Agriculture, Fisheries and Food,
Sea Fisheries Protection Authority,
Attorney GeneralRespondentsJUDGMENT of O'Neill J. delivered the 28th day of May 2009.
1.1 This Court (O'Higgins J.) granted leave to the applicant to seek, inter alia, the following reliefs by way of an application for judicial review on the 28th July, 2008:-
An order of certiorari quashing the decision of the second named respondent dated the 10th July, 2008, purporting to withdraw the authorisation to fish for tuna granted to the applicant and dated the 30th June, 2008.
A declaration that the respondents and each of them, their respective servants or agents acted in breach of and failed to uphold and insofar as practicable vindicate the applicant's constitutional rights and in particular dealt with the applicant in breach of natural and/or constitutional justice and in breach of the principle of audi alterem partem.
2.1 The applicant is a fisherman. He claims to have invented a new method of fishing for tuna in the form of a special net. Commencing in 2003 the applicant has applied six times for an authorisation to fish for tuna using this net, which has been modified somewhat over that time.
The application of 2003
2.2 On the 12th May, 2003, the applicant made an application to the first named respondent for an authorisation in respect of the MFV Marden to fish for tuna and to participate in the 2003 Albacore Tuna Fishery. On the application form he indicated that he proposed to use fishing gear "other" than "pair pelagic", "mechanised trolling" or "surface long- lining", though he did not specify what gear he would use.
2.3 The first named respondent requested further information about the applicant's proposed method of tuna fishing by letter dated the 23rd July, 2003, in particular, details of the material from which the net was made and how the fish were retained in the net. An inspection of the net the applicant had invented was conducted by Mr. Dominic Rihan of Bord Iascaigh Mhara ("BIM") on the 13th August, 2003. Mr. Rihan prepared a report dated the 15th August, 2003, on foot of this inspection and forwarded it to the first named respondent. Mr. Rihan concluded that the applicant's proposed fishing gear was very similar to drift netting, which is prohibited under E.U. and national law:-
In conclusion while I would consider that potentially the proposed method is not illegal according to the existing regulations prohibiting drift-netting for tuna, the fact that the gear being used is very similar means that control and enforcement and the need for supervised trials essential to prove it's (sic) legality as there are certain similarities in the gears being used. Whether the method will work is conjecture at this stage and ultimately the decision whether to grant a permit on a purely experimental basis is solely at the discretion of the DCMNR.
For the above reason the application for an authorisation was refused by the first named respondent by letter to the applicant dated the 4th September, 2003. The following day Mr. Michael Keating, Fisheries Development Manager of BIM set forth the opinion of BIM on the matter to the first named respondent in the following terms:-
"Having considered this matter further and following detailed consultation with the Board's expert in gear technology [Mr. Rihan], BIM is of the opinion that the characteristics of this gear and the manner in which it was deployed display the characteristics of a gill or entangling net."
The application of 2004
2.4 A further application was made for an authorisation to fish for tuna on the 30th April, 2004, by the applicant in respect of the MFV Marden for the 2004 Albacore Tuna Fishery. On this application it was indicated that the type of fishing gear he would use would be "sea netting" and "rope slide". There was an undated application to fish for tuna in respect of the MFV Lauralena wherein it was indicated that fishing gear "other" than the types stated on the form would be used. Further information was sought by the first named respondent by letters sent by fax dated the 6th May, 2004, and the 11th May, 2004, in respect of the proposed method of fishing to be applied. A further letter was sent to the applicant by fax on the 3rd June, 2004, requesting him to make contact with Mr. Jim Condon of the office of the first named respondent. There are no other details on the file of the first named respondent in respect of this application.
The application of 2005
2.5 The applicant applied for a patent in respect of his net on the 8th December, 2004. He made an application to the first named for an authorisation to fish for tuna in respect of the MFV Marden to participate in the 2005 Albacore Tuna Fishery. He indicated on the application form that he intended to use "sea netting". The first named respondent sought clarification as to what this meant by letter dated the 12th July, 2005. A further assessment of the applicant's gear was carried out by Mr. Rihan in August 2005 whereby he considered, inter alia, the patent application documentation supplied by the applicant. In his report of the 10th August, 2005, he noted that the gear proposed differed slightly from that put forward by the applicant in 2003, in that, the gear in the 2003 application had multiple "pockets" along its length whereas the gear as described in the patent only had a single "pocket". Mr. Rihan concluded, however, in his report of 2005, that the fishing gear had similarities with standard drift net gear which "would make control and enforcement almost impossible without constant independent observation". In particular, he found that the method of hauling the gear would be similar to a gill or a drift net and he expressed the view that the patent would not stand up to legal scrutiny. The first named respondent decided not to grant the authorisation to fish for tuna in respect of the application using the fishing gear proposed by the applicant and communicated this to him by letter dated the 12th August, 2005.
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