McDaid v Min Marine
| Jurisdiction | Ireland |
| Judge | O'Hanlon J., |
| Judgment Date | 07 September 1994 |
| Neutral Citation | 1994 WJSC-HC 3521 |
| Date | 07 September 1994 |
| Court | High Court |
| Docket Number | No.64 JR/1993 |
1994 WJSC-HC 3521
THE HIGH COURT
BETWEEN
AND
Citations:
MERCHANT SHIPPING ACT 1894 S465
MERCHANT SHIPPING ACT 1894 S466
MERCHANT SHIPPING ACT 1894 S728
HOLLOWAY V BELONOS PUBLICATIONS LTD 1988 IR 494
AMBIORIX V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277
O'BRIEN V IRELAND UNREP O'HANLON 26.8.94
HAUSSMAN V MIN FOR MARINE 1991 ILRM 382
HALSBURYS LAWS OF ENGLAND 3ED V11 PARA 107
SIMPSON BAILEY & EVANS ON DISCOVERY & INTERROGATORIES 2ED (1990) 24
HOGAN & MORGAN ON ADMINISTRATIVE LAW IN IRELAND 504
GALE V DENMAN 1930 1 KB 588
RSC O.31
KEEGAN, STATE V STARDUST TRIBUNAL 1987 ILRM 202
SHANNON ATLANTIC FISHERIES, STATE V MCPOLIN & ANOR 1976 IR 93
RSC O.31 r29
Synopsis:
JUDICIAL REVIEW
Remedy
Scope - Document - Contents - Disclosure - Refusal - Minister of State - Marine accident - Death of fisherman - Report of preliminary enquiry - Failure of fisherman's widow to obtain report from Minister prior to institution of action - Judicial review not appropriate procedure for obtaining discovery of documents - (1993/64 JR - O'Hanlon J. - 7/9/94)- [1994] 3 IR 321
|McDaid v. Minister for the Marine|
PRACTICE
Documents
Discovery - Procedure - Action - Absence - Widow - Husband's death in marine accident - Report of preliminary enquiry - Failure of fisherman's widow to obtain report from Minister prior to institution of action - Judicial review not appropriate procedure for obtaining discovery of documents - (1993/64 JR - O'Hanlon J. - 7/9/94)- [1994] 3 IR 321
|McDaid v. Minister for the Marine|
Judgment delivered by O'Hanlon J.,the 7th day of September, 1994.
The Applicant, Emma McDaid, who sues by her mother and next friend, Sally McDaid, is the infant daughter of the late David McDaid, who met his death by drowning near Malin Head, Co. Donegal, on the 20th September, 1987, when the fishing vessel "Boy Shaun" on which he was a crew-member was lost at sea.
Proceedings for damages in respect of the death of the said David McDaid are contemplated on behalf of the Applicant, but have not as yet been initiated as the full circumstances of the accident in which the vessel was involved are unknown to the family of the deceased.
The Applicant's Solicitors, Messrs. P.A. Dorrian and Co., of Buncrana, Co. Donegal, were in communication with the Minister for the Marine about the accident and received aletter dated 3rd November, 1992, from the Office of the Minister, giving the following information:
Following the loss of this vessel and the tragic death of four of the crew, the Minister for the Marine at the time, Mr. Brendan Daly, T.D., ordered an investigation into the casualty. In accordance with the provisions of Section 465 of the Merchant Shipping Act, 1894, a Marine Surveyor of the Department conducted a Preliminary Inquiry into the loss of the "Boy Shaun".
The statutory purpose of the Inquiry was to enable the circumstances of the shipping casualty to be established and to determine whether the circumstances were such as to warrant the holding of a Formal Investigation under Section 466 of the 1894 Act.
The Marine Surveyor who carried out the Inquiry interviewed and took sworn statements from the only survivor of the casualty and the skipper of another fishing vessel which was in the area at the time of the casualty. He also had reports from the Marine Rescue Co-ordination Centre at Shannon, the Meteorological Office and Malin Head Coast RadioStation.
Having considered the Preliminary Inquiry report and the available evidence the Minister decided that the holding of a Formal Investigation was not warranted.
At that time it had been long established practice that reports of Preliminary Inquiries were confidential to the Minister and were not published. Those who made statements to the Surveyor carrying out the Inquiry did so on the understanding that the report of the Inquiry would remain confidential to the Minister. Accordingly, I regret that the report of the Preliminary Inquiry into the loss of the "Boy Shaun" may not be made available to you on behalf of your client.
I enclose for your information a copy of a statement which the Minister for the Marine, Dr. Michael Woods, T.D., made earlier this year concerning the future publication of reports of marine accident investigations conducted by the Department of the Marine.
The copy statement which was enclosed with the letter contained an announcement by the Minister that in future a report of the investigation into marine accidents would be released and made available to the public, but that it wasnot intended to apply the new policy retrospectively, "as earlier investigations were conducted under different circumstances and with certain guarantees of confidentiality being given."
The statement recited that the decision to publish such reports for the future was taken "in the interests of maritime safety and in order to allay public concern about such accidents."
Following upon the refusal of the Minister to furnish the information and documentation sought by the Applicant's solicitors, the present proceedings for Judicial Review were initiated, in which the relief sought was stated in the following terms in the Statement Required to Ground Application for Judicial Review:-
1. Mandamus by way of application for Judicial Review directing the first-named Respondent herein to make available to the Applicant a copy of a Preliminary Report carried out in relation to a boating tragedy which occurred on the 20th day of September, 1987, in relation to a trawler known as the "Boy Shaun" which the said First Named Respondent has refused to make available to the Applicant herein who is a widow of one of the crew members of the said fishing vessel.
2. A Declaration by way of application for Judicial Review that the refusal of the First Named Respondent to make available the said Preliminary Report carried out on behalf of the First Named Respondent to the Applicant herein, is ultra vires his powers, has no basis in law and is in breach of the Applicant's constitutionalrights.
The Respondents in their Statement of Grounds of Opposition contest the entitlement of the Applicant to the relief sought.Mr. Justice Geoghegan, in granting leave to the Applicant to apply for Orders of Mandamus and Declaration by way of Application for Judicial Review, also gave leave to the Applicant to amend, (if necessary), the Statement grounding the Application, dated the 25th February, 1993, by the addition thereto of the following relief:
"3. An Order for discovery".
In such event the Applicant was to file and serve a Statement incorporating the Amendment as aforesaid. From the papers before me, however, it does not appear that any such Amendment was made subsequent to...
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