State (Shannon Atlantic Fisheries) v McPolin

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1976
• Docket Number: [1974 No. 185 SS.]
• Date: 01 January 1976

The State v. McPolin

The State (at the Prosecution of Shannon Atlantic Fisheries Limited)

and

The Minister for Transport and Power and D. J. McPolin

[1974 No. 185 SS.]

High Court

Statute - Inquiry - Natural justice - Shipping loss - Report prepared by nominee of Minister of State - Shipowners ignored by nominee - Certiorari - Discretion of court - Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), ss. 413, 465.

Pursuant to s. 465 of the Merchant Shipping Act, 1894, the first respondent appointed the second respondent to hold a preliminary inquiry into the wrecking of the prosecutors' fishing vessel. The second respondent took depositions from members of the vessel's crew, and he sought information from the prosecutors about the log and other records of the vessel. The second respondent did not interview any officer or member of the prosecutor company; he did not give the prosecutors an opportunity of learning the contents of the depositions and he did not give the prosecutors an opportunity to cross-examine or question the members of the crew. After the second respondent had issued his report, the first respondent wrote to the prosecutors and requested their observations upon the fact that the inquiry had disclosed that, in allowing the vessel to sail, the prosecutors had committed certain offences under the Act of 1894. The offences alleged were triable summarily. The prosecutors obtained in the High Court a conditional order of certiorari for the purpose of quashing the report of the second respondent, and the respondents showed cause. At the hearing of the prosecutors' application for an order absolute, notwithstanding the cause shown, it was

Held by Finlay P., in disallowing the cause shown, 1, that the second respondent had been engaged in a decision-making function when he prepared and made his report.

2. That the preliminary inquiry of the second respondent was a quasi-judicial investigation affecting the prosecutors' interests and that the inquiry had not been conducted in accordance with the principles of natural justice.

3. Even if, by reason of the expiration of the relevant time limit, the prosecutors were no longer liable to be prosecuted for the offences alleged, the prosecutors had a sufficient interest in the preservation of their reputation as shipowners to justify the court in exercising its discretion in their favour.

Certiorari

The facts have been summarised in the head-note and they appear in the judgment, post. The prosecutors' application for an order absolute was heard by Finlay P. on the 15th January, 1975, when judgment was reserved.

Section 10(4) of the Petty Sessions (Ireland) Act. 1851, provides:—"In all cases of summary jurisdiction the complaint shall be made . . . in all other cases within six months from the time when the cause of complaint shall have arisen, but not otherwise."

Cur. adv. vult.

Finlay P. 17th February, 1975

This is an application by the prosecutors, Shannon Atlantic Fisheries Ltd., to make absolute (notwithstanding cause shown) the conditional order of certiorari obtained by them on the 22nd July, 1974. from the former President of the High Court. The conditional order was directed to the

respondents and it required the second respondent to send before the Court for the purpose of being quashed his report of the result of an inquiry conducted by him into the wrecking of the motor fishing vessel "Colm Padhraig" referred to in a letter dated the 23rd May, 1973, from the second respondent to the prosecutors, and all records and entries relating thereto. The conditional order was made upon the grounds that the inquiry was not conducted in accordance with the principles of natural justice. The respondents have shown cause against the making absolute of the order and have filed an affidavit sworn by the second respondent.

The facts surrounding this application may be summarised as follows. The prosecutors were the owners of a fishing vessel "Colm Padhraig" which was wrecked off the Galway coast near Barna on the 2nd June, 1972. On the 7th September, 1972, the first respondent appointed the second respondent, pursuant to s. 465 of the Merchant Shipping Act, 1894, to hold a preliminary inquiry respecting the casualty to the motor vessel "Colm Padhraig."

By virtue of that appointment, the second respondent requested from...