THE HIGH COURT
(JUDICIAL REVIEW)
									1996 - 245 J.R.
BETWEEN 
PATRICK JAMES TIERNAN
									APPLICANT
AND
THE NORTH WESTERN REGIONAL FISHERIES BOARD
									RESPONDENT

Judgment by Mr. Justice Barr delivered on the 12th day of May, 1997.

	The facts relating to this application are not in dispute and are as follows:-
	The applicant is a shop keeper who carries on the business of trading in fishing equipment and tackle at Main Street, Foxford, County Mayo where he also resides.  In or about 1996 he decided to extend his business to include dealing in salmon.  Such trading activity is subject to statutory supervision by fisheries boards of conservators pursuant to powers granted to them under the Fisheries (Consolidation) Act, 1959 as amended (the Act).  A requirement for carrying on business as a dealer in salmon is the obtaining of a licence in that regard from the relevant fisheries board, in this case the respondent.  However, the requirements of the Act go further than the acquisition of a licence.  It is also provided that a certificate of fitness to hold such a licence must be obtained by the applicant from the District Judge for the time being assigned to the area where the applicant carries on or proposes to carry on business.  The scheme laid down by the Act, insofar as it is pertinent to this application, is as follows:-

	"Section 158.  Where a person who carries on or proposes to carry on the business of selling salmon and trout or of exporting for sale salmon and trout in a particular Court District applies to a District Justice for the time being assigned to that Court District for a certificate under this section, such District Justice, if satisfied that such person is a fit and proper person to hold a..... licence, shall grant him a certificate in writing to that effect.

	Section 159(1)	Where -
			(a)	a person to whom a certificate of fitness has been granted applies, within twenty-eight days after such grant, to the board of conservators for a fishery district for the issue to him of a licence authorising him to carry on the business of selling salmon and trout at any specified place or places within such fishery district, and 
			(b)	there is sent with the application -
				(i)	such certificate of fitness, and
				(ii)	the sum of one pound [now £60] being the excise duty imposed..... on a salmon dealers licence,
				...... such board of conservators may, through its clerk, issue to such person such licence.....
			(c)	Every application...... to a board of conservators shall -
				(a)	be made in writing to the clerk of such board,
				(b)	be in the prescribed form and contain the prescribed particulars....."	
	
	On 16th April, 1996 the applicant applied to the District Court sitting at Foxford on notice to the respondent and to the Garda Siochana for a certificate of fitness to hold a salmon dealer's licence pursuant to Section 158 of the Act.  No objection was made to the application and the requisite certificate was duly issued by the District Judge and was thereupon furnished to the board.  The applicant then sought and obtained from the respondent a printed application in the prescribed form which he duly submitted with the required fee.  The form is sparse in its terms and indicates only the nature of the licence sought; the name and address of the applicant; his signature; the date and the amount of fee being paid.  There is nothing on the form to indicate that the applicant should or may furnish details or make any submission as to the business of dealing in salmon which he is seeking to commence.  In short, the form is not designed to give the board any information about the application other than the type of licence sought and the address of the premises where the proposed business will be carried on.  The applicant did not provide the respondent with any further details regarding the application, nor did he make or furnish any submission relating to it.  He appears to have contented himself with completing the form which had been sent to him and returning it to the respondent with the required fee, his solicitor having already furnished the certificate of fitness from the District Court.  The respondent board considered the application at its meeting on 7th May, 1996 and its decision was communicated to the applicant by letter dated 17th May, 1996 from Mr. Vincent Roche, chief officer of the board.  It is in the following terms:-
	"The Board considered your application for a salmon dealers' licence at its meeting on 7th May, 1996.

	However, having regard to your principal business and the fact that there are already several licensed dealers in the Foxford area, the Board decided not to grant you a licence.

	I am returning herewith your cheque for £60.00 submitted with your application."

	The applicant took up the matter of the refusal with his solicitors and they wrote to Mr. Roche on 24th May seeking an amount of specific information relating to the refusal and, in particular, the grounds relied upon by the board for making its decision.  There was no response to that letter and Messrs. O'Connor wrote again to Mr. Roche on 17th June threatening proceedings in the High Court if they did not receive "an adequate and full response to our letter stating, inter alia, the reasons why the board saw fit not to issue a licence to our client".  Mr. Roche responded by letter dated 25th June, 1996 to Messrs. O'Connor and Son as follows:-
1
	"I refer to your letters of 24th May, 1996 and 17th June, 1996 on behalf of your client, Mr. Patrick J. Tiernan, Main Street, Foxford, County Mayo, in relation to the refusal by the Board to issue him with a licence for the sale of salmon.  I regret the delay in replying to your initial letter.  
	
	Mr. Tiernan's application was considered by the Board at its meeting on 7th May, 1996 and, having fully considered the application, the Board decided not to grant a licence to Mr. Tiernan.  The Board is entitled, under the provisions of Section 159(1) of the Fisheries (Consolidation) Act, 1959 to either grant or refuse a licence to an applicant.  The fact that an applicant already holds a Certificate of Fitness from the Courts does not, of course, mean that he automatically obtains a salmon dealer's licence.  In considering applications, you can be assured that the Board takes into account all relevant matters.  These would include the location of the applicant's premises, the nature of the business in which he is already involved and the number of other licensed outlets for salmon in the locality.  These matters were reported on verbally to the Board at its meeting on 7th May which was held here in Ardnaree House.  I enclose herewith a list of members of the Board, all of whom can be contacted through this address."

	The foregoing explanation was not accepted by the applicant and on 29th July, 1996 he applied to this court for liberty to proceed by way of judicial review challenging the decision of the respondent not to grant him a salmon dealer's licence.  The application was heard by Kelly J. who gave the applicant liberty to proceed for an order of certiorari in respect of the refusal of the respondent to grant the licence in question and an order of mandamus directing it to consider in accordance with law the applicant's application for such a licence under Section 159 of the Act together with a declaration that the purported decision of the respondent dated 17th May, 1996 was ultra vires and of no force or effect.  The applicant was also given liberty to make a claim for damages.
	The response of the board to the applicant's case is set out in two affidavits sworn by Mr. John Walkin, chairman, in which, inter alia, the following averments are made:

	"5.  I say that whenever an application is made for a salmon dealer's licence, the Board in discharging its duties in a proper and legal manner is obliged to consider the implications of granting such a licence.  A salmon dealer is obliged to keep a register which includes details of all purchases and sales of salmon and trout.  An official of the Board is empowered and required to inspect the licence holder's premises together with the above mentioned register on a regular basis.  This also involves checking stocks of salmon held by the licensed salmon dealers and reconciling these with the entries in the register.  A considerable burden is thereby imposed on the Board's staff during the main salmon season when resources are already over-stretched in protection of salmon bearing rivers and lakes as well as the sea out to the twelve mile limit from the coast.  The total area under the Board's control in the Ballina Fisheries District is approximately 1,000 square miles together with something over 1,000 square miles of coastal area and sea to the twelve mile limit.  The Board's staff in the Ballina Fisheries District comprises seven permanent fishery officers, one assistant inspector and one inspector and these are supplemented by four temporary fishing officers during the main salmon season.  The Board has been unable in the past to devote sufficient time for the inspection of salmon dealers, registers and premises due to the pressure of work in providing patrols on rivers, lakes and at sea.  For this reason the Board has had a policy of restricting the number of licenses which it issues.  The Board then has regard to such matters as:
	(a)	the type of business carried on by the applicant;
	(b)	the premises which the applicant intends to provide for the purchase and sale of salmon and trout including facilities for storage of fish in such a way that would enable them to be readily checked and counted by the Board's staff in the course of an inspection and reconciled with the register;
	(c)	the number of other licensed salmon dealers in the immediate area concerned;
	(d)	the number of licensed salmon dealers in the wider region;
	(e)	other relevant matters which might be raised by the chief officer or members of the Board.
	6.	I say that the Board considered the applicant's application for a salmon dealer's licence at its meeting on 7th May, 1996.  There were seventeen members of the Board present at this meeting which was held in Ardnaree House, Abbey Street, Ballina in the County of Mayo.  I further say that the Board considered the application and reviewed the information contained in the application form completed by the applicant and reports made verbally by the Chief Officer of the Board at the meeting relating to the location of the applicant's premises, the nature of the business in which he was already involved, the number of other licensed salmon dealers in Foxford, the number of other licensed salmon dealers in the Ballina Fisheries District and other relevant matters.....  
	7.	The Board also considered the application in the light of its policy generally to restrict the number of salmon dealers' licenses which it issues and in the light of other relevant matters as referred to in paragraph 5 above.  Having fully discussed and considered the merits of the application the Board then concluded that it would not grant a licence to the applicant.  As the strongest reason for the Board's refusal to grant a licence related to the fact that there were already a number of licensed salmon dealers in Foxford, that the applicant was not involved in the food retail business and that his principal business related to the sale of fishing equipment and tackle, these grounds were minuted as the reasons for the refusal.....
	8.	I say and am advised that the applicant's application for a licence was determined on its merits.  I deny that the decision of the Board was either unreasonable or irrational......"

	The extract from minutes of the board's meeting on 7th May, 1996 is in the following terms:-

	"8.  Salmon Dealers Licence
	The Board considered the application of Patrick J. Tiernan, Main Street, Foxford, County Mayo for a salmon dealer's licence.  However, having regard to the fact that there were already a number of licensed salmon dealers in Foxford and the principal business of the applicant was fishing tackle and that he was not involved in the food retail business, the Board decided not to grant a licence - proposed by Mr. J. McNally and seconded by Mr. C. Cooper."

	In a further affidavit the applicant deposed that until it emerged in Mr. Walkin's first affidavit, he had not been aware that the chief officer had made oral representations to the board and he averred that he had not been afforded an opportunity of furnishing any information in rebuttal thereof.  He also stated that of the three persons who hold salmon dealers' licences in Foxford, only one, Mr. Martin Quinn, actively avails of his licence.  This fact has not been contested on behalf of the board.  The applicant also complained that he had not been given an opportunity to inform the board of the work he intended to carry out in connection with providing proper facilities for the storage of salmon.  In a supplemental affidavit, Mr. Walkin averred that the verbal information furnished to the board by Mr. Roche, the chief officer, were by way of reports which contained "all the factual circumstances surrounding this application as referred to in paragraphs 5 and 6 of my grounding affidavit".  

	THE LAW
	A perusal of the Fisheries (Consolidation) Act, 1959 as amended and relevant judicial authorities establish the following propositions in the context of the matter under review:-
1.	The primary objective of the Act is to protect fisheries on a regional basis through the aegis of boards of fishery conservators such as the respondent.  Part X relates to commercial dealing in salmon.  Dealers are required to obtain from the relevant board a licence to trade in such fish.  A condition precedent to the granting of a licence is that the applicant must obtain from the local District Court a certificate of fitness to carry on such a business.  The reason for that requirement is to ensure, as far as possible, that the applicant is a person of good character who will not engage in or facilitate salmon poaching or other unlawful activity.  The necessity for obtaining a certificate of fitness from the District Judge of the area in question establishes that the Oireachtas regards the business of trading in salmon as being a significant commercial activity and by inference that the granting of a licence to carry on such business entails a serious assessment and determination of each such application by a board of conservators.
2.	It has been held by Carroll J. in Donal Brendan O'Connell -v- South Western Regional Fisheries Board, Ireland and the Attorney General, 15th April, 1986, unreported, that the phrase in Section 159(1) of the Act "may issue" such a licence is permissive and not mandatory.  I have no difficulty in accepting that the function of a fisheries board in dealing with an application for a salmon dealer's licence is far from being a mere "rubber stamp" exercise following upon the obtaining by the applicant of a certificate of fitness from the District Court.  As Carroll J. has pointed out the statutory purpose of licensing salmon dealers is to provide a public benefit, (i.e, the control of illegal fishing) and not to confer a benefit on licensees to sell fish.
3.	However, the requirement in the interest of the common good that salmon traders must be licensed to engage in such commercial activity is a potential interference with and restriction of their basic right to carry on lawful business.  Accordingly, in exercising its function to grant or refuse an application for such a licence, the board must perform its duty fairly and reasonably not only in the interest of the common good, but also having proper regard to the commercial rights of the applicant.  That in turn entails, inter alia, inviting the applicant to specify the case he wishes to make in support of his application and, secondly, where information adverse to him is furnished to the board by its chief officer or any other person, he should be invited to respond to any such matter before a final decision is made.  This does not necessarily require an oral hearing of the application.  In short, the board in the conduct of licence applications has a duty to act fairly and judicially in accordance with the principles of constitutional justice.  See judgment of Blayney J. in International Fishing Vessels Limited -v- The Minister for the Marine, [1989] I.R. 149 (which relates to fairness of procedures in a broadly similar situation), and the judgment of Barron J. in Flanagan -v- University College Dublin, [1989] I.L.R.M. 469 at 475 which contains the following passage:-

		"Once a lay tribunal is required to act judicially, the procedures to be adopted by it must be reasonable having regard to this requirement and to the consequences for the person concerned in the event of an adverse decision."

4.	I am satisfied that in considering applications from traders for salmon dealers' licenses, fisheries boards are not conducting a purely administrative function but are also engaged in a quasi judicial process.
5.	The board is not entitled to refuse an application for a salmon dealer's licence on the ground that it does not have the manpower and/or resources to monitor the applicant's business if granted a licence.  It seems to me that, at best from the board's point of view, such a perceived difficulty has only peripheral relevance, i.e., a factor, among others, which might be taken into account in considering whether the number of licensees in a given district should be curtailed.
6.	Reviewing the respondent's decision to refuse to grant the applicant a salmon dealer's licence, the following conclusions emerge:-

	(a)	The applicant was given no opportunity to make his case in favour of the application either orally or by way of written submission.
	(b)	The respondent made its decision without knowing the applicant's case in support of his application and it did so on the basis of incomplete and in part erroneous information supplied by its chief officer. 	
	(c)	The applicant was given no opportunity to respond to the grounds of refusal relied on by the respondent that:-
		(i)	there were already three licensed salmon dealers in Foxford and 
		(ii)	that the applicant's principal business was in fishing tackle and he had no involvement in the food retail business.  
	If he had been given such an opportunity it appears that he would have been in a position to satisfy the board that of the three persons holding salmon dealers' licenses in Foxford, only one is in active business.  As to the second ground; it is not necessarily an acceptable reason for refusal of a licence.  For all the board knows, the applicant's intention might be to enhance his primary business of selling fishing tackle by offering his customers the service of purchasing salmon caught by them locally which are surplus to their personal requirements, i.e., the proposed business expansion, though important to the applicant, might be modest in nature and one which might present no difficulty in monitoring on behalf of the board.

	The end result is that the respondent has failed in its duty to act fairly and reasonably in ruling on the applicant's application for a salmon dealer's licence.  Their decision in that regard is unlawful and must be quashed.  The applicant is entitled also to an order of mandamus directing the respondent to consider his application again in accordance with the procedure indicated in this judgment.  It is premature to consider the issue of damages until the licence application is finally determined.