International Fishing Vessels Ltd v Minister for the Marine (No. 2)

• Jurisdiction: Ireland
• Judge: McCarthy J.,O'FLAHERTY J.
• Judgment Date: 22 February 1991
• Date: 22 February 1991
• Docket Number: [1988 No. 73 J.R.]
• Court: Supreme Court

INTERNATIONAL FISHING VESSELS LTD v. MIN MARINE

BETWEEN

INTERNATIONAL FISHING VESSELS LIMITED

APPLICANT/APPELLANT

AND

THE MINISTER FOR MARINE

RESPONDENT

1991 WJSC-SC 732

Hederman J.

McCarthy J.

O'Flaherty J.

(23/39-90)

THE SUPREME COURT

Synopsis:

TRIBUNAL

Decision

Reasons - Disclosure - Minister of State - Licence - Refusal - Sea-fishing boat - Six reasons for refusal - Two reasons not disclosed to applicant before refusal - Fair procedures - Valid refusal of licence - (23,90/90 - Supreme Court - 22/2/91)

|International Fishing Vessels v. Minister for the Marine|

LICENCE

Grant

Refusal - Grounds - Statement - Necessity - Fair procedures - Licence to use sea-fishing boat - Breach of conditions attached to spent licence - Justified refusal to grant new licence - Two reasons not disclosed to applicant before refusal - (23,39/90 - Supreme Court - 22/2/91) - [1991] 2 I.R. 93

|International Fishing Vessels v. Minister for the Marine|

MINISTER OF STATE

Powers

Licence - Grant - Refusal - Fair procedures - Disclosure of reasons for refusal - Licence to use sea-fishing boat - Breach of conditions attached to spent licence - Justified refusal to grant new licence - Two reasons not disclosed to applicant before refusal - (23,39/90 - Supreme Court - 22/2/91) - [1991] 2 I.R. 93

|International Fishing Vessels v. Minister for the Marine|

NATURAL JUSTICE

Fair procedures

Licence - Grant - Refusal - Reasons - Necessity for disclosure - Licence to use sea-fishing boat - Breach of conditions attached to spent licence - Justified refusal to grant new licence - Two reasons not disclosed to applicant before refusal - (23,39/90 - Supreme Court - 22/2/91) - [1991] 2 I.R. 93

|International Fishing Vessels v. Minister for the Marine|

Citations:

MERCHANT SHIPPING ACT 1894 PART IV

FISHERIES (CONSOLIDATION) ACT 1959 S222(B)

FISHERIES (AMDT) ACT 1983

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

EAST DONEGAL CO-OP V AG 1970 IR 317

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 281

IRISH PHARMACEUTICAL UNION, STATE V EMPLOYMENT APPEALS TRIBUNAL 1987 ILRM 36

MAUNSELL V MIN FOR EDUCATION 1940 IR 213

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1981 ILRM 54, 1982 ILRM 590

CASSIDY V MIN FOR INDUSTRY & COMMERCE 1978 IR 297

1 Judgment of McCarthy J.delivered the 22nd day of February, 1991. [Hederman J. Conc.]

2 The Facts. The Applicant is a company registered in Ireland; 51% of its share capital is owned by Irish citizens and 49% by Interpesco S.A., a company incorporated in Spain. It was originally called Brunian Limited, then Ardent Fisheries Limited, until the 14th December 1987 when it altered its name to its present name. In 1986 it owned two sea-fishing vessels, the Saladina and the Itxaso, each of which was registered in Ireland on the Ships Registry and on the Register of Sea-fishing boats under Part IV of the Merchant Shipping Act 1894. To be so registered there must beheld a sea-fishing license pursuant to Section 222 (B) of the Fisheries (Consolidation) Act 1959.In 1986, the company obtained from the Minister four sea-fishing licences for each of the vessels, from the 1st March to the 30th April, the 1st May to the 31st May, the 1st June to the 31st July, and the 1st August to the 31st October, 1986. For what it is worth, the March licences were not issued until the 13th March.

3 On the 9th October 1986, the company applied for "renewal of my Sea-fishing Boat Licence" in respect of each vessel, using the official form for that purpose. No decision was made until the 29th January 1988 when the Minister refused both applications. Following judicial review proceedings, the reasons for the Minister's decision were set out in a letter of the 6th October 1988:-

"6th October 1988."

4 International Fishing Vessels Ltd.,

5 20 Upper Merrion St.,

6 Dublin 2.

7 Dear Sir,

8 I am directed by the Minister for the Marine to refer to your applications for sea-fishing boat licences under section 222B (inserted by the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959and the judgement of Blayney, J. in Judicial Review No. 73 of 1988 delivered on the 7th day of September 1988.

9 I am instructed to inform you that the decision of the Minister was for each of the following reasons:

10 • - the sea-fishing boats to which these applications related were used in contravention of licences issued under the said section 222B and, in particular, a condition relating to the crewing of Irish sea-fishing boats;

11 • - the sea-fishing boats to which these applications related were used in contravention of the law of the State and of the European Communities, viz,

12 • - validly qualified officers were not carried on board;

13 • - accurate records of catches were either notmaintained, or, where maintained, were not transmitted in accordance with law;

14 • - sea-fish were fished and retained on board in contravention of law;

15 • - the applicant dishonoured commitments made to the Minister in relation to landings by the vessels at certain ports within the State and in relation to the crewing of the vessels;

16 • the Minister was satisfied that the applicant used sea-fishing boats, the subject of these applications, contrary to section 222B(2) (inserted by the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959, when there were no valid licences in force in respect of the said sea-fishing boats;

17 • - the representations, both oral and written, submitted in support of these applications, did not satisfy the Minister on the grounds that the said representations were confusing and in conflict; notwithstanding opportunities afforded to the applicant to resolve such confusion or conflict, this was never done to the Minister'ssatisfaction.

18 • - the applicant has failed to satisfy the Minister that past commitments made by it, or, on its behalf, were honoured, or, to satisfy him that there were valid reasons why they were not honoured, nor, is the Minister satisfied that commitments offered in support of the present applications could or would be honoured;

19 • - taking a broad overview of the history of these applications and the performance of the applicants and its sea-fishing boats, the Minister did not believe that he should exercise his discretion to grant these applications.

20 Yours sincerely,

21 It is common case that the contraventions identified as:-

"validly qualified officers were not carried on board",and

"sea-fish were fished and retained on board in contravention oflaw"

22 were not drawn to the attention of the Applicant; there is no challenge to the other allegations of fact; in particular, it is accepted that "the applicant used sea-fishing boats, the subject of these applications.... when there were no valid licences in force in respect of the said sea-fishing boats". But, it is said, the Minister expressly or by necessary implication agreed to overlook this factor and not to take it into account in considering theapplications.

Judicial Review.

23 By its amended notice, the Applicant seeks an order that the decision of the Minister be quashed substantially on the grounds that:-

24 2 "(3) the reasons given indicate the Respondent was considering refusing the Applicant's application on grounds other than the grounds of which the Applicant was informed and the Applicant was not given any opportunity to be heard in relation to such lattermatters.

25 (4) The reasons given indicate that the Respondent took into account the fact that the Applicant's vessels were fishing during the period of approximately 15 months after the expiry of its last licence and pending a decision of the Respondent on its applications for renewal of the said licences. By reason of the representations and actions of the Respondent its servants or agents in relation to such fishing activities of the Applicant the Respondent was estopped from taking this fact intoaccount."

26 Counsel for the Applicant summarised her submission: If the Minister in making a decision to which the rules of natural justice or constitutional justice apply and indicates that he proposes refusing for reasons (a) and (b) and...