[New search]
[Printable RTF version]
[Help]
Tiernan v. North Western Regional Fisheries Board [1997] IEHC 82; [1997] 2 IR 104 (12th May, 1997)
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:-
1. 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.
(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....."
2. 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."
3. 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."
4. 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.
5. 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......"
6. 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."
7. 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
8. 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.
9. 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.
10. 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.
© 1997 Irish High Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/1997/82.html
