Lough Swillly Shellfish Growers Co-operative Society Ltd & Atlanfish Ltd v Bradley & Ivers

JurisdictionIreland
CourtSupreme Court
JudgeO'Donnell J.
Judgment Date13 March 2013
Neutral Citation[2013] IESC 16
Docket Number[S.C. No. 259 of 2011]
Date13 March 2013
Lough Swillly Shellfish Growers Co-operative Society Ltd & Atlanfish Ltd v Bradley & Ivers

Between:

Lough Swilly Shellfish Growers Co-Operative Society Ltd. & Atlanfish Ltd.
Plaintiffs/Respondents

And

Danny Bradley and Robert Ivers
Defendants/Appellants

[2013] IESC 16

Hardiman J.

O'Donnell J.

Clarke J.

259/2011

THE SUPREME COURT

STATUTE LAW

Commencement

Interpretation - Commencement provisions - Intention of Oireachtas - Commencement of amending provision - Whether necessary for provision amending parent Act to be commenced by order where parent Act contained commencement provision - Whether commencement of amending Act sufficient to commence provision amending parent Act - Practice - Appeal to Supreme Court - Enlargement of time to serve notice of appeal - Extension of time to appeal - Discretionary order - Amendment of High Court order - Whether time limit for appeal of order can be enlarged where order amended -- Whether Supreme Court may consider arguments not raised in High Court - AA v Medical Council [2003] 4 IR 302; Dunnes Stores Ireland Company v Ryan [2002] 2 IR 60; Éire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170; F McK v. TH (Proceeds of crime) [2006] IESC 63, [2007] 4 IR 186; Fagan v Dominitz [1958] SR (NSW) 122; Fitzgerald v Kenny [1994] 2 IR 383; Henderson v Henderson (1843) 3 Hare 100; KD (orse C) v MC [1985] IR 697; M v Scottish Ministers [2012] UKSC 58, [2012] 1 WLR 3386; Movie News Ltd v Galway County Council (Unreported, Supreme Court, 25th July, 1977); Podger v Minister for Agriculture [2002] 4 IR 16 and Rex v Minister of Town and Country Planning. Montague Burton Ltd and Others, ex parte [1951] 1 KB 1 considered - Rules of the Superior Court 1986 (SI 15/1986), O 58 - Fisheries (Amendment) Act 1997 (No 23), s 19A(4) - Sea-Fisheries and Maritime Jurisdiction Act 2006 (No 8), s 101(c) - Constitution of Ireland 1937, Article 25.4.1 - Appeal dismissed (259/2011 - SC - 13/3/2013) [2013] IESC 16

Lough Swilly Shellfish Growers Co-op Society Ltd v Bradley

The first named plaintiff was granted a foreshore licence and an aquaculture licence on the 20 th October 1994 for the purposes of mussel and oyster cultivation on a designated area on Lough Swilly, Co. Donegal. Both licences were for ten years. When the licences expired, the first named plaintiff applied to renew them and were permitted to continue their operation in the interim pursuant to s. 19A(4) in the Fisheries (Amendment) Act 1997 ('1997 Act') as amended by s.101(c) of the Sea Fisheries and Maritime Jurisdiction Act 2006 ('2006 Act'). The defendants were fishermen who entered the designated area from September 2006 whilst the renewal process was still underway.

The first named plaintiff sought and obtained an interlocutory injunction restraining the defendants from continuing to fish in the area, then sought a permanent injunction and damages. It was the defendants" case that the first named plaintiff"s were not legally entitled to sole use of the designated area. They further stated that s. 19A(4) of the 1997 Act was unconstitutional. Following the hearing, the first named plaintiff"s claim was upheld and they were awarded €25,000 in damages. The defendants appealed the decision on the basis that s. 19A(4) of the 1997 Act was not in force at the time of the alleged trespass. The 1997 Act had a provision concerning the commencement of the sections by commencement orders. The only two commencement orders were both made in 1998 and the combined effect was that only sections 11 and 13 were left outstanding. The defendants argument was that no order had commenced the operation of s. 19A(4) of the 1997 Act. The 2006 Act did not have a provision for commencement of its sections and so came into effect on the day it was introduced.

Held by O"Donnell J. (with Hardiman J. and Clarke J. concurring) that it was illogical to suggest the 2006 Act, which was brought into force on the day it was enacted, had successfully inserted an amending provision into the 1997 Act , but that it was ineffective because it in turn had not been commenced. It was determined that the purpose of the 2006 Act was to make such a commencement which was in accordance with Article 25.4.1 which presumes that an act comes into force on the date it is signed by the President, unless the contrary appears.

It was further argued that as the original order was perfected on the 8 th February 2010, the defendants could not appeal the order. It was also determined that this was not a case where an extension of time to appeal was merited.

Appeal dismissed.

SEA FISHERIES & MARITIME JURISDICTION ACT 2006 S101(C)

FISHERIES (AMENDMENT) ACT 1997 S19A(4)

FISHERIES (AMENDMENT) ACT 1997 S1(3)

FISHERIES (AMENDMENT) ACT 1997 (COMMENCEMENT) ORDER 1998 SI 46/1998

FISHERIES (AMENDMENT) ACT 1997 (COMMENCEMENT) (NO 2) ORDER 1998 SI 203/1998

FISHERIES (AMENDMENT) ACT 1997 S11

FISHERIES (AMENDMENT) ACT 1997 S13

SEA FISHERIES & MARITIME JURISDICTION ACT 2006 S101

FISHERIES (AMENDMENT) ACT 1997 S19A

HENDERSON v HENDERSON 1843-60 378 67 ER 313 1843 3 HARE 100

MCK (F) v H (T) & H (J) 2007 4 IR 186 2006/36/7594 2006 IESC 63

RSC O.28 r1

MOVIE NEWS LTD v GALWAY CO COUNCIL UNREP KENNY 30.3.1973

D (K) (ORSE C) v C (M) 1985 IR 697 1987 ILRM 189 1985/7/1790

CONSTITUTION ART 25.4.1

PLANNING & DEVELOPMENT ACT 2000 S270

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT (AMENDMENT) ACT 2010 S32

PLANNING & DEVELOPMENT (AMENDMENT) ACT 2010 S33

PLANNING & DEVELOPMENT ACT 2000 S50B

PODGER v MIN FOR AGRICULTURE, FOOD & RURAL DEVELOPMENT 2002 4 IR 16 2002/23/5928 2002 IEHC 98

DISEASES OF ANIMALS ACT 1966 S17A

DISEASES OF ANIMALS (AMENDMENT) ACT 2001 S2(1)

INTERPRETATION ACT 1937 S10(1)(B)

R v MIN OF TOWN & COUNTRY PLANNING EX PARTE MONTAGUE BURTON LTD 1950 2 AER 282 1951 1 KB 1 114 JP 411 94 SOL JO 487

FAGAN v DOMINITZ 1958 SR (NSW) 122

POISONS ACT OF NEW SOUTH WALES 1952 S1(2)

GOBBI WHEN TO BEGIN A STUDY OF NEW ZEALAND COMMENCEMENT CLAUSES WITH REGARD TO THOSE USED IN THE UNITED KINGDOM AUSTRALIA AND THE UNITED STATES 2010 31 3 SLR 153-2016

R M v SCOTTISH MINISTERS 2012 WLR 3386 2012 AER (D) 322 2010 UKSC 58

EIRE CONTINENTAL TRADING CO v CLONMEL FOODS LTD 1955 IR 170 1953 87 ILTR 35

RSC O.58 r8

FITZGERALD v KENNY 1994 2 IR 383 1994 2 ILRM 8 1994/2/664

DUNNES STORES LTD v RYAN 2002 2 IR 60 2002/8/1713 2002 IESC 7

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

WYLIE THE JUDICATURE ACTS (IRELAND) 1905 P781

1

Judgment of O'Donnell J. delivered on the 13th of March, 2013

2

Judgment delivered by O'Donnell J [nem diss]

3

1 This case presents an intriguing of point of statutory construction of apparently general application, which appears not to have arisen in any reported decision in any jurisdiction within the reach of the researches of counsel or indeed the Court. However, this issue is surrounded on this appeal by a morass of confusion, procedural complexity, and simple error.

4

2 On the 20 th of October 1994 the first named plaintiff obtained a licence ("the foreshore licence") in respect of a portion of the foreshore of Lough Swilly, County Donegal, for the purposes of oyster and mussel cultivation. On the same day the Minister for the Marine granted the first named plaintiff a licence ("the aquaculture licence") to cultivate oysters and mussels at the designated place in Lough Swilly near Inch Island. The aquaculture licence was expressed to be exclusive. Both licences were for a period of 10 years and thus expired on the 19th of October 2004. However, it was provided by s.101(c) of the Sea Fisheries and Maritime Jurisdiction Act 2006 ("2006 Act"), inserting a new s. 19A(4) in the Fisheries (Amendment) Act 1997 ("1997 Act"), that a licensee who had applied for a renewal of an aquaculture licence would be entitled to continue the aquaculture in operation pending the decision on the renewal. At the time the subject matter of the proceedings, the plaintiffs' licence had indeed expired and an application for renewal had been made but had not been determined. Accordingly the interpretation and effect of s. 19A(4) of the 1997 Act as inserted by s. 101 of the 2006 Act, was an essential element in the title of the plaintiffs and was therefore central to the legal point sought to be advanced on this appeal.

5

3 The defendants are fishermen who have traditionally fished for shellfish in Lough Swilly. As and from around September 2006 they began to enter the area of the plaintiffs' foreshore licence and remove oysters. Their grievances about their exclusion from a rich source of shellfish in a traditional fishing area was complicated further by complaints made by environmental campaigners that the plaintiffs' seeding of gigas oysters which, it was alleged, was having a detrimental effect on the existence of the native oysters in Lough Swilly. To this generalised complaint, the defendants added the claim that they were entitled to continue to harvest native oysters wherever they might be found.

6

4 The plaintiffs sought and obtained an interlocutory injunction, and then pursued a claim for a permanent injunction and sought extensive damages. The defendants denied any breach of the plaintiffs' rights both by denying the plaintiffs' entitlement as a matter of law and any breach as a matter of fact. The position is perhaps best stated in a paragraph contained in the first named defendant's replying affidavit in the injunction proceedings:

"The position is that the licence expired on or about the 19 th October 2004 and has not been formally renewed by the appropriate government department. In the period 2004-2007 no steps would...

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