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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carbery Fishing Ltd & Anor -v- Vallely & Ors [2012] IEHC 260 (28 June 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H260.html Cite as: [2012] IEHC 260 |
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Judgment Title: Carbery Fishing Ltd & Anor -v- Vallely & Ors Neutral Citation: 2012 IEHC 260 High Court Record Number: 2011 664JR Date of Delivery: 28/06/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 260 Neutral Citation Number: [2012] IEHC 260 THE HIGH COURT JUDICIAL REVIEW RECORD NO: 2011/664JR BETWEEN: CARBERY FISHING LIMITED AND FINTRA TRAWLING COMPANY LIMITED APPLICANTS v.
MICHAEL VALLELY THE REGISTRAR GENERAL OF FISHING BOATS, THE MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, EMILE DALY, IRELAND AND THE ATTORNEY GENERAL. RESPONDENTS Judgment of Mr. Justice Hedigan delivered the 28th day of June 2012 1. The first named applicant is a limited liability company which carries on business in the fishing industry and is the registered owner of the M.F.V Atlantic Quest "S0985". The second named applicant is a limited liability company which carries on business in the fishing industry and is the registered owner of the M.P.V. Eternal Dawn "S0958". The first named respondent was appointed an Appeals Officer by the third named respondent in accordance with section 6(1) of the Fisheries (Amendment) Act 2003. The second named respondent is the licensing authority responsible for sea fishing boats. The third named respondent is the Minister with responsibility for Agriculture, Fisheries and Food. The fourth named respondent is an Appeals Officer appointed by the third named respondent in accordance with section 6(1) of the Fisheries (Amendment) Act 2003. The fifth named respondent is the Irish State. The sixth named respondent is sued as legal representative of the fourth and fifth named respondents. 2. The applicants seek the following reliefs.
(ii) a declaration that the applicants had a legitimate expectation that the first named respondent was a validily appointed Appeals Officer for the purposes of Part Ill of the Fisheries (Amendment) Act 2003; (iii) a declaration that on 31 March 2011, the first named respondent was entitled to hear the applicant's appeal against the Mackerel Authorisation vessel, the MFV Eternal Dawn and Atlantic Quest; (iv) a declaration that on 31 March 2011, the first named respondent had the power, pursuant to section 18 of the Fisheries (Amendment) Act 2003, to refer questions of law, which arose during the course of the Applicants' appeal, to the High Court for decision; (v) a declaration that the third named respondent was not entitled to request that the first named respondent return the appeal papers in the in the applicants' appeal to the Second Respondent on the grounds that the first named respondent was not, on 31 March 2011, a validly appointed Appeals Officer for the purposes of Part III of the Fisheries (Amendment) Act 2003; (vi) an order of certiorari quashing the decision of the third named respondent to direct the first named respondent to return the appeal papers in the applicants' appeal to the second named respondent; (vii)an order of certiorari quashing the decision of the second named respondent to forward the papers in the applicant's appeal to the fourth named respondent for the purposes of the fourth named respondent conducting a full rehearing of the applicants' appeal; (viii) an order of mandamus compelling the first named respondent to refer questions of law, which arose during the course of the applicants' appeal, to the High Court for decision; (ix) an order of prohibition prohibiting the fourth named respondent from conducting a full rehearing of the applicants' appeal; 3.1 These proceedings arise out of a Sea Fishing Boat Licence Appeal. The law governing the independent appeals system for sea fishing boats is contained in Part III of the Fisheries (Amendment) Act 2003 ("the 2003 Act"). The right to appeal is contained in section 7(1) of the 2003 Act which provides:-
(b) A person other than the applicant for or holder of the licence concerned may only appeal under paragraph (a) if he or she made representations in writing to the licensing authority before the decision in question was made."
3.3 On 12th April 2011 and the 18th April 2011 the third named respondent requested that the first named respondent furnish the third named respondent with a copy of his warrant of appointment. In a response to correspondence on the 18th of May 2011 from the applicant's solicitor, the first named respondent on the 22nd of May 2011 refused to state a case pursuant to section 18 of the Fisheries (Amendment) Act 2003 to the High Court on the grounds that his warrant of appointment had expired. 3.4 On 25th July 2011 an application was made ex parte by the plaintiffs to Mr Justice Peart grounded on the affidavit of Mr. D.P Barry, Solicitor for the plaintiffs sworn on the 22nd of July 2011. Peart J granted leave to apply by way of application for judicial review for the reliefs set out in the Statement of Grounds and to serve an originating Notice of Motion returnable for 13th of October 2011. The respondents issued a motion seeking an Order setting aside the applicants' application for leave for failure to comply with the provisions of section 19 of the Fisheries (Amendment) Act 2003, and the procedures for applying for Judicial Review contained therein. In a written judgment of Mr. Justice Cross delivered on the 19th of December 2011, the respondents' motion was dismissed. The respondents Statement of Opposition was delivered on the 25th of January 2012 and is grounded on the Affidavit of Paschal Hayes. Applicant's Submissions The respondent's application was rejected by Cross J. who outlined the basis for this decision in a 13 page written judgement dated 19 December 2011. Cross 1. set out the respondents' arguments at pages 7 to 10 of the written judgment. The respondents sought to argue that the applicants should have utilised the judicial review procedure set out in section 19 of the 2003 Act. Section 19 states inter alia:-
(2) An application for leave to apply for judicial review under the Order in respect of a decision of an Appeals Officer:- (a) shall be made within the period of 3 months commencing on the date on which the decision was made, and (b) shall be made by notice of motion (grounded in the manner specified in the Order in respect of an ex parte motion for leave) which shall be served on an Appeals Officer and each party or each other party, as the case may be, to the appeal, or any other person specified for that purpose by order of the High Court, and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed..."
4.2 The 2003 Act does not specify the manner in which Appeals Officers are to be appointed other than to provide that they shall be appointed by the third named respondent. The 2003 Act does not require Appeals Officers to be furnished with Warrants of Appointment to be validly appointed. It simply requires that they be appointed. The Shorter Oxford English Dictionary defines the verb "appoint" inter alia as follows:-
4.3 In McGlinchey v Governor of Portlaoise Prison [1988] IR 671 the Supreme Court held that a judge, who had been validly appointed to the Special Criminal Court, a creature of statute, at the date of his appointment, was entitled to continue to sit as a member of the Special Criminal Court notwithstanding the fact that he had retired as a judge. The applicant submits that the McGlinchey case is relevant because it shows that as long as an individual was qualified at the date of his appointment he can continue to act notwithstanding that his circumstances might have changed. In the present proceedings, the first named respondent had the necessary qualifications i.e. not less than 5 years experience as a practising barrister, and continued to act after the expiration of his three year term at the behest of the second named respondent. Consequently, he was in the same position as the retired judges in the McGlinchey case who continued to act past their retirement date, because (a) they had the necessary qualifications when they were initially appointed and (b) were also still qualified as barristers or solicitors of at least 7 years standing. 4.4 The applicants submit that they had a legitimate expectation that the first named respondent was a validly appointed appeals officer when he conducted the oral hearing into the applicant's appeals on Thursday, 31 March 2011 in circumstances where the public authority, in this case the second and third named respondents, made a statement on their website to the effect that the first named respondent was a validly appointed appeals officer and adopted a position amounting to a promise or representation that he was an appeals officer by directing that appeals be sent to him at the address given and by participating in appeals that he conducted; that representation was addressed and conveyed directly to the applicants, who were affected actually or potentially as an appellant, in such a way that it formed part of a transaction definitively entered into or a relationship between the applicants and the second and third named respondent and that the applicants acted on the faith of the representation by lodging and participating in the appeal before the first named respondent; the expectation reasonably entertained by the applicants was that the second and third named respondents would abide by the representation such that it would be unjust to permit the public authority to resile from it. Respondents Submissions 5.2 While the remedies available in judicial review proceedings are discretionary in nature, relief may be refused when there is an adequate alternative remedy available. The respondents submit that this was a case where there was an adequate alternative remedy available. In State (Abenglen Properties Limited) v Dublin Corporation [1984] I.R. 381 the Supreme Court was of the view that the applicant should 'exhaust all remedies'. In those proceedings, the applicant sought to challenge the imposition of restrictive conditions attached to a grant of planning permission in judicial review proceedings. However, the applicant had the option of appealing the decision to An Bord Pleanala. Henchy J., in his judgment was of the view that the courts should not intervene by way of judicial review where the statutory appellate procedure was adequate to meet the complaint on which the application was grounded. The respondent submits that the applicants would suffer no prejudice as a result of the matter being transferred to the fourth named respondent. The applicants are seeking the reliefs of certiorari, mandamus, prohibition and declaratory relief by way of Judicial Review. These reliefs are not necessary as the fourth named respondent holds the position of an Appeals Officer with full statutory powers capable of ensuring an appeal conforming with all the requirements of natural justice and fair procedures. 5.3 The respondent submits that the reliefs sought by the applicants should not be ordered in circumstances where they would confer no practical benefit or where no legitimate purpose would be served. The respondents argue that a public authority or Appeals Officer cannot expressly, or by mistake, give itself jurisdiction it does not posesess, nor can an applicant or a private individual consent to or waive jurisdiction. The applicants in these proceedings would suffer no prejudice as a result of the matter being transferred to the fourth named respondent. 5.4 There can be no lawful expectation to do something that is not legitimate. In Wiley v Revenue Commissioners [1994] 2IR 160, the applicant had previously been afforded an entitlement to the repayment of excise duty based on medical and other criteria. On the occasion in question, based on a more detailed consideration of the applicant's case, he was subsequently refused such repayment. The applicant sought to quash the respondents' refusal to grant a refund. He argued that having been granted a refund on two previous occasions on the basis of evidence of the licensing authority exempting him from road tax and not having been given any notice of change of practice, he had a legitimate expectation of a refund in the present instance. On the facts, it was found that the refusal was a proper application of the relevant criteria and the Supreme Court held the applicant's expectation had not been a legitimate one. The respondent, the Revenue Commissioners, being a statutory body which could only act pursuant to statutory powers vested in them, and would have been acting ultra vires and in breach of their statutory duty to collect the value added tax and excise duties had they granted an exemption. The respondents submit that based on Wiley the applicants could not have had a legitimate expectation as that there can be no lawful expectation to do something that is not legitimate. Decision of the Court Estoppel Appointment
"No person shall be appointed to be a member of a Special Criminal Court unless he is a judge of the High Court or the Circuit Court, or a justice of the District Court, or a barrister of not less than seven years standing, or a solicitor of not less than seven years standing, or an officer of the Defence Forces not below the rank of commandant." 6.3 I do not consider the Mc Glinchey case assists the applicant because the basic facts are different. Under the Fisheries Act, the Appeals Officer is appointed for a specific term of three years. In the instant case the Appeals Officer was appointed first in 2003 and again in 2006. It is common case he was not appointed again. He confirmed on 22nd May 2011, that his warrant of appointment had lapsed and that he was no longer a statutory appointed appeals officer. The most that is argued for by the applicant is that he was continued on in some informal manner. Evidence of this was to be found on the official website and by implication from his continuing to hear appeals after 2009. But unlike the judges of the Supreme Court in Mc Glinchey, whose terms were not ended by any expired term limit as at the date of the impugned hearing, the Appeals Officers term was ended. Article 1 of Schedule 1 to the Fisheries Act 2003 provides the Appeals Officer may be appointed to a term of three years. He may be reappointed. These appointments pursuant to s. 6 (1) of the Act must be made by the Minister. The Minister did so twice, in 2003 and again in 2006 but not again. I do not believe it is possible to read the Act in such a way as to allow continuance in office without such appointment. Such an interpretation could not in my view survive a challenge by a disappointed appellant to this Court on judicial review. Such an argument is equally not sustainable here in what might be considered the opposite circumstance. Alternative Remedies
6.5 In State (Abenglen Properties Limited) v Dublin Corporation [1984] I.R. 381 Henchy J. held as follows at 405:-
Legitimate Expectation In the Supreme Court, Henchy J. was of the view that it would destroy the doctrine of ultra vires if the donee of a statutory power could extend his power by creating an estoppel. Henchy J. at page 264 of the judgment said;
"The power given to an authority under a statute is limited to the four comers of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel." 6.7 To summarize, firstly, I am satisfied that the respondents are not estopped from denying the Appeals Officer was not a validly appointed Appeals Officer. They have always done so and the decision of Cross J. in this regard confirmed this was their case and decided they could not move on another contradictory case. Secondly, I am not satisfied that the McGlinchey case assists the applicants because unlike the judges in McGlinchey whose terms were not ended by any expired term limit, Appeals Officers terms are ended by the expiry of specific term limits. Thirdly, it seems to me that the applicant has failed to exhaust all remedies. There was a perfectly acceptable solution proposed to the applicants to resolve the problem. The applicants appeal could have been heard by the fourth named respondent who was a validly appointed Appeals Officer with statutory power to hear and determine the applicants appeal. Finally it is clear that the applicants cannot rely on the doctrine of legitimate expectation. A public authority cannot give itself a jurisdiction it does not possess. For all the above mentioned reasons I must refuse the relief sought.
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