Healy v Minister for Communications & Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: O'Neill J.
• Judgment Date: 28 May 2009
• Neutral Citation: [2009] IEHC 258
• Docket Number: [2008 No. 905
• Date: 28 May 2009

[2009] IEHC 258

THE HIGH COURT

[No. 905 J.R./2008]

Healy v Min for Communications & Ors

Donal Healy

Applicant

And

Minister for Communications, Fisheries and Natural Resources, Minister for Agriculture, Fisheries and Food, Sea Fisheries Protection Authority, Ireland

and

Attorney General

Respondents

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13(1)

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13(13)

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13(13)(B)

CARR v MIN FOR EDUCATION & LIMERICK VOCATIONAL EDUCATION COMMITTEE 2001 2 ILRM 272 2000/4/1285

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13(12)

SEA FISHERIES FORESHORE & DUMPING AT SEA (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 2007

VOCATIONAL EDUCATION (AMDT) ACT 1944 S7

FISHERIES

Licence

Authorisation - Revocation - Whether authorisation nullity - Whether Minister entitled to avoid statutory scheme for revocation - Whether holder of authorisation entitled to make representations on proposed revocation - Sea-Fisheries and Maritime Jurisdiction Act 2006 (No 8), s 13 - Certiorari granted (2008/905JR - O'Neill J - 28/5/2009) [2009] IEHC 258

Healy v Minister for Communictions, Fisheries and Natural Resources

JUDICIAL REVIEW

Remedies

Certiorari - Nature of remedy - Whether certiorari would be futile - Discretion of court - Whether certiorari justified to ensure actions of public authorities subject to judicial review - Carr v Minister for Education and Science (Unrep, SC, 23/11/2000) distinguished - Certiorari granted (2008/905JR - O'Neill J - 28/5/2009) [2009] IEHC 258

Healy v Minister for Communictions, Fisheries and Natural Resources

Facts: The applicant was a fisherman and claimed to have invented a new method of fishing. Various applications for authorisations to fish were refused and an authorisation made had later been withdrawn. The applicant sought an order quashing a decision purporting to withdrawn the authorisation to fish for tuna already granted. The applicant alleged that the respondent had acted in breach of the constitutional rights of the applicant and the principles of constitutional justice and audi alteram partem. The applicant contended that the second named respondent had not acted in accordance with s. 13 Sea Fisheries and Maritime Jurisdiction Act 2006 and submitted that the withdrawal of the authorisation was ultra vires the Act of 2006. The respondent alleged that an order of certiorari would have served no purpose. The issue arose as to whether an administrative error in issuing an authorisation rendered it a nullity.

Held by O' Neill J. That the reliefs sought would be granted. The rights that the applicant would have had under s. 13 of the Act of 2006 would not be protected or advanced by an order of certiorari. The public authorities could not be beyond the judicial review jurisdiction of the courts.

Reporter: E.F.

1. Reliefs Sought

2 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 28 ^th July, 2008:-

1 An order of certiorari quashing the decision of the second named respondent dated the 10 ^th July, 2008, purporting to withdraw the authorisation to fish for tuna granted to the applicant and dated the 30 ^th June, 2008.

2 A declaration that the respondents and each of them, their respective servants or agents acted in breach of and failed to uphold and insofar aspracticable 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. The facts

2 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 2.2 On the 12 ^th 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.

3 2.3 The first named respondent requested further information about the applicant's proposed method of tuna fishing by letter dated the 23 ^rd 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 13 ^thAugust, 2003. Mr. Rihan prepared a report dated the 15 ^th 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 4 ^th 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 2.4 A further application was made for an authorisation to fish for tuna on the 30 ^th 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 6 ^th May, 2004, and the 11 ^th 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 3 ^rd 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 2.5 The applicant applied for a patent in respect of his net on the 8 ^th 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 the12 ^th 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 10 ^th 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 12 ^th August, 2005.

3 2.6 In 2006, Mr. Rihan sought advice from Mr. Ken Arkley, a Senior Gear Technologist with the Seafish Industry Authority in Hull, United Kingdom, on the method of fishing proposed in the applications of the applicant. He forwarded him his report from 2005 and a copy of the patent application. Mr. Arkley wrote back to Mr. Rihan by letter dated the 28 ^th March, 2006, enclosing a note of his comments which stated that he agreed with the findings of the BIM report " in thatit would be extremely difficult to classify the gear as anything other than a drift net."

The application of 2006

2 2.7 On the 14 ^th June, 2006, the applicant re-applied to the first named respondent for an authorisation to fish for tuna to participate in the 2006 Albacore Tuna Fishery in...