Author: JOHN MEE
Company: UCC
Category: Miscellaneous
Document comments: BERTIE BROSNAN -V- FISHERIES BOARD - QUIRKE J.

THE HIGH COURT

									JUDICIAL REVIEW
									1997 No. 330 J.R.

BETWEEN

BERTIE BROSNAN
									APPLICANT
AND
SOUTH WESTERN REGIONAL FISHERIES BOARD, 
THE MINISTER FOR THE MARINE, IRELAND AND
THE ATTORNEY GENERAL
									RESPONDENTS

Judgment of Mr. Justice Quirke delivered the 4th day of September, 1998.

	By Order of the High Court (Budd J.) dated the 10th day of September, 1997, the Applicant was granted leave to apply for various reliefs by way of Judicial Review in respect of a decision made by the South Western Regional Fisheries Board (hereinafter referred to as the Board) on the 10th day of June, 1997, whereby the Board declined to issue to the Applicant a certificate of suitability for appointment as a waterkeeper pursuant to the provisions of Section 294 of the Fisheries (Consolidation) Act, 1959 (hereinafter referred to as the 1959 Act) as amended by Section 17 of the Fisheries (Amendment) Act, 1991 (hereinafter referred to as the 1991 Act).  
	In particular, the Applicant was granted leave to seek:-

(a)	an Order of Certiorari quashing the decision of the Board made on the 10th day of June, 1997, and

(b)	an Order of Mandamus directing the Board to reconsider the Applicant's request for a certificate of suitability for appointment as a waterkeeper together with other Declaratory and Injunctive reliefs against both Respondents.

	At the commencement of the hearing Counsel indicated that the parties had agreed that the proceedings herein would be confined, at least until further Order, to the Applicant's claim against the Board for the reliefs described at (a) and (b) above, and, by consent of the parties, I adjourned the Applicant's claim against the Second, Third and Fourth named Respondents pending the outcome of these proceedings.  
	
THE FACTS

	The Applicant who is 43 years old and resides with his wife and two children in Tralee, County Kerry was first appointed a waterkeeper in 1977 pursuant to the provisions of the 1959 Act and he has been employed in that capacity since 1977.  Although he has described himself in evidence as a "security contractor" he has clearly averred to the fact that since the date of his first appointment as a waterkeeper in 1977, he has relied upon that occupation as his sole source of income and the sole means of support for himself and for his family so that he relies upon this employment exclusively for his livelihood.  
	The Board is a statutory body which, inter alia, has responsibility for the management of fisheries in the Kerry region and for appointing waterkeepers for state fisheries but additionally, and in particular, it is the statutory body charged with the responsibility imposed by Section 17 of the 1991 Act for the issue to appropriate applicants of certificates of suitability for appointment as waterkeepers in respect of private fisheries who are desirous of making such appointments for the purpose of protecting their fisheries.  
	The Board comprises a number of persons who, inter alia, are elected thereto pursuant to the provisions of Section 14 of the 1991 Act and usually because they are reputable persons living within the South Western region of Ireland who are experienced in matters relating to the protection and preservation of fisheries.
	Pursuant to the provisions of Section 294 of the 1959 Act (as amended) the appointment of a private waterkeeper must be confirmed by a Judge of the District Court and Section 2A of Section 294 of the 1959 Act (as inserted by Section 17 of the 1991 Act) expressly provides inter alia that:-

	"(a)	An appointment shall not be confirmed unless the person concerned has been issued by the appropriate regional board with a certificate of suitability for appointment.
	(b)	An appointment shall be for a period not exceeding five years.
	(c)	Every appointment made before the commencement of the Fisheries (Amendment) Act, 1991, and in force at the date of the commencement thereof shall expire not later than five years after that date..."
The 1991 Act came into force on the 31st October, 1991.
	Accordingly, the powers and obligations of a waterkeeper cannot be lawfully vested in the Applicant unless and until the Board has first issued to him a document certifying that he is a suitable person to be appointed a waterkeeper and his authority to act in that capacity and to earn his livelihood from that activity is wholly dependant upon the issue of such a certificate by the Board.  
	The Applicant was on the 31st day of October, 1991 a lawfully appointed waterkeeper pursuant to various warrants issued by the Board pursuant to the 1959 Act and having regard to the provisions of sub-section (c) of Section 2A of Section 294 of the 1959 Act (as inserted by Section 17 of the 1991 Act) his appointment as a waterkeeper remained in force until its expiration on the 31st October, 1996 when he was engaged in the occupation of waterkeeper on behalf of some private fisheries including Messrs. Chopwell Limited, Mr. Paul Metz and Messrs. K.R.D. Fisheries Limited all of whom indicated a desire to re-appoint the Applicant as waterkeeper in respect of their fisheries.
	By letter dated the 27th May, 1997 the Applicant wrote to Mr. Barry, the Manager of the Board, seeking Certificates of Suitability in respect of ".... Upper Caragh River, Owenmore and K.R.D. Fisheries...." indicating inter alia that ".... as these fisheries are private and are part of my business and means of earning a living, I anticipate that there will be no problems".
	By letter dated the 13th June, 1997 Mr. Barry replied to the Applicant referring to his application and stating simply that "... the Board has declined to issue the requested letter".
	By letter dated the 23rd June, 1997 the Applicant's Solicitors wrote to the Board requesting that the Board should specify the grounds or reasons why it was declining to issue the appropriate certificate and by letter which is (presumably incorrectly) dated 17th June, 1997, the Board's Solicitors replied indicating that ".... there is no obligation on the Board to issue reasons for its decision".  
	Uncontradicted evidence was adduced on behalf of the Board to the intent that the Applicant has been convicted of the following offences:-

1.	Assault upon a member of the public on the 22nd February, 1979.
2.	Possession of a single-barrelled shotgun and ammunition on the 9th day of March, 1979 with intent to endanger life or cause serious injury to property.
3.	Assault upon a police officer on the 3rd day of August, 1986.
4.	Resisting a police officer in the execution of his duty on the 3rd day of August, 1986.
5.	Three separate convictions of assault upon members of the public on the 6th day of June, 1985.
6.	Conduct calculated to lead to a breach of the peace on the 6th day of June, 1985.
7.	Two separate convictions of assault on members of the public on the 9th day of January, 1989.
8.	Unlawful possession of a firearm, to wit, a double-barrelled shotgun on the 9th day of January, 1989.
9.	Permitting the carcasses of one dog and one sheep to remain unburied on the 24th day of April, 1995.
10.	Permitting unnecessary suffering to four dogs on the 6th day of July, 1995.
11.	Driving with excess alcohol in his blood on the 15th day of July, 1995.
12.	Ten separate convictions arising out of incidents in four different locations in Co. Kerry on the 25th day of May, 1995, including the production of an article capable of inflicting serious injury in a manner likely to intimidate another person, unauthorised possession of ammunition, unauthorised possession of a firearm, failing to stop after a road traffic accident, driving whilst uninsured and failing to give information to the gardai on leaving the scene of an accident.

	All of the convictions referred to above were summary convictions which were dealt with in the District Court and prison sentences were imposed upon the Applicant in respect of some convictions including sentences of three months imprisonment, six months imprisonment and in one case twelve months imprisonment.  
	The Applicant however did not serve any terms of imprisonment because all of the sentences were ultimately suspended or reduced either in the District Court or on appeal from that Court.
	Evidence was adduced on behalf of the Board to the intent that on the 19th day of January, 1996 the Judge of the District Court, in the course of sentencing the Applicant in respect of the offences committed on the 25th May, 1995, described the Applicant as "..... a dangerous man and a criminal - he has a bad record.  He is a most unsuitable person to be engaged as a Waterkeeper".
	The minutes of a meeting of the Board held on Tuesday, the 8th April, 1997 recorded as follows:-

	"The Manager brought to the Board's attention a letter from Chopwell Limited regarding the appointment of Bertie Brosnan as a waterkeeper for their fisheries.  It was unanimously agreed that this matter be deferred to the next meeting of the Board so that legal advice could be sought on this matter."

	The minutes of a meeting of the Board on Tuesday, the 10th June, 1997 recorded inter alia the following:-
	
	"(b)	Application from Bertie Brosnan for a Certificate of Suitability to hold a Waterkeepers Warrant for the Upper Caragh River, Owenmore River and K.R.D. Fisheries.... The manager overviewed the current situation regarding the application (b) and referred to discussions of the last Board meeting regarding this Applicant and arising from same the Manager said that he had sought legal advice from our Solicitors in regard to this matter, which advised that the Board were in a position to decline to issue a Certificate of Suitability to Mr. Brosnan.  He recommended that the Board deal with this application as advised by our Solicitors.  Joe D. Tansley objected to this course of action and said that everybody had a right to earn a living under the Constitution.  The Manager then drew to the Board's attention the Applicant's history.  Joe Tansley then accepted the view and recommendation of the Manager but said that he had some sympathy for the Applicant."

	Evidence adduced by the Chairman of the Board, Mr. Noel Hales, indicated that at the meeting of the Board on the 10th day of June, 1997 the Applicant's criminal record, which involved the use of violence and the unlawful possession of firearms together with the observations of the District Judge as outlined above, influenced the members of the Board in arriving at its unanimous decision.
	On the 1st October, 1996 appeals by the Applicant in respect of the severity of the sentences of imprisonment imposed upon him in respect of the offences committed on the 25th May, 1995 were heard in the Circuit Court in Tralee and the Applicant was placed under the supervision of the Probation Welfare Service whilst his appeal was adjourned to the 4th March, 1997 and thereafter to the 18th November, 1997 when the sentences of imprisonment appear to have been suspended.  It follows from the foregoing that on the 10th day of June, 1997 when the Board was considering the Applicant's application for a Certificate of Suitability, the sentences which had been imposed upon him were the subject of an appeal against severity.  
	
	THE APPLICANT'S CLAIM

	The Applicant seeks an Order of Certiorari quashing the Board's decision on the grounds that the Board failed to follow fair procedures and to act in accordance with natural justice in that it:-

	(a)	decided to refuse to issue a certificate which fundamentally affected the Applicant's capacity to earn his livelihood without affording him an opportunity to be heard.
	(b)	made a decision which fundamentally affected the Applicant's capacity to earn a living without taking into account the views of the Applicant or inviting him to make submissions as to his suitability.
	(c)	made a decision which fundamentally affected the Applicant's right to earn a livelihood by considering particular information or evidence which was in the possession of the Board but without affording the Applicant an opportunity to be heard by way of clarification or enlargement or otherwise in respect of such information when the Applicant's clarification or enlargement or evidence or submissions might have influenced or altered the view of the Board or its individual members and the outcome of the Board's deliberations on the application before it.  
	(d)	that the Board failed to state the ground upon which the certificate might be refused and failed to inform the Applicant of the grounds upon which the certificate was in fact refused.  

	THE BOARD'S DEFENCE

	The Board contends that the issue of a Certificate of Suitability for appointment as a waterkeeper is a matter peculiarly within the discretion of the Board in order to ensure that only competent persons of integrity and good character are appointed to exercise the powers and functions conferred upon them by the 1991 Act.
	The Board further claims that when considering an application for a certificate of suitability for appointment as a waterkeeper, the Board is acting in an administrative and not a quasi-judicial capacity and that in such circumstances the rules of natural and constitutional justice and the requirement to follow fair procedures do not mandate that reasons be given as to why particular applications for certificates are declined by the Board.
	Alternatively, the Board contends that it acted in a responsible and appropriate manner in refusing to issue a certificate to the Applicant having regard to his criminal record, the observations of the Judge of the District Court and the Board's obligations, both statutory and otherwise.

	THE LAW

	Section 2A(a) of Section 294 of the 1959 Act provides that an appointment as a waterkeeper "... shall not be confirmed unless the person concerned has been issued by the appropriate regional board with a Certificate of Suitability for appointment".
	Since there is no other reference to such a certificate within either the 1959 Act or any subsequent legislation, it follows that the above sub-section has the effect of empowering the regional boards defined within the 1959 Act (as amended) to issue such certificates and that the power of the boards is discretionary in nature.  
	In the State (Daly) -v- Minister for Agriculture, (1987) I.R. 165, Barron J. referring to the statutory power conferred upon the Minister for Justice to terminate the services of a probation prison officer contained in Section 7 of this Civil Service Regulation Act, 1956 declared that:-

	"In all cases, the exercise of the statutory power is subject to the guarantee of fair procedures.  The question in each case is whether or not in the light of its own particular circumstances such guarantee has been observed.  The fact that the decision relates to a person in a probationary position does not affect his or her right to fair procedures.  It is no more than one of the circumstances to be considered to determine whether in the particular case fair procedures have been observed."

	He went on to cite with approval the following statement of law made by O'Higgins C.J. in the State (Lynch) -v- Cooney, (1982) I.R. 337 in relation to Section 31 of the Broadcasting Authority Act, 1960:-
	"The Court is of the opinion that S. 31, sub-s. 1, of the Act of 1960, as amended, does not confer on the Minister the wide, unfettered and sweeping powers which have been alleged by the prosecutor.  The Court is satisfied that the sub-section does not exclude review by the Courts and that any opinion formed by the Minister thereunder must be one which is bona fide held and factually sustainable and not unreasonable...."

	In Daly Barron J. went on to declare that:-

	".... Section 7 of the Act of 1956 cannot be construed as giving to the Minister a power to act in any manner he pleases.  Such powers may only be exercised in conformity with the Constitution.  The view of the Minister must be seen to be bona fide held, to be factually sustainable and not unreasonable....." 

	In the instant case I am satisfied that since the issue by the Board to the Applicant of a Certificate of Suitability for appointment as a waterkeeper fundamentally affects the Applicant's capacity to earn a livelihood for himself and for his family, the exercise by the Board of its statutory power to issue such a certificate was expressly subject to a guarantee in favour of the Applicant of the application of fair procedures in respect of the consideration of his case.
	In the State (Daly) -v- Minister for Agriculture (supra), Barron J. pointed out that since no reasons had been given by the Minister in that case for the exercise of his power it was impossible for the Court to review the exercise of that power in the light of the appropriate criteria and to discover whether or not the Minister's decision had been based upon views which were ".... bona fide held, factually sustainable and not unreasonable".
	In the instant case reasons have been advanced on behalf of the Board justifying its refusal to issue a Certificate of Suitability to the Applicant on the grounds, inter alia, of the very substantial number of criminal offences of which he has been convicted and the remarks of the Judge of the District Court on a particular occasion which related to the Applicant's character and suitability for the occupation of waterkeeper.
	These reasons however have been given ex post facto insofar as they were made known to the Applicant for the first time within the course of these proceedings and substantially after the Board had declined to issue the certificate for which the Applicant had applied.
	Having regard to the reasons which have now been given by the Board in support of their refusal to issue a certificate to the Applicant, their refusal prima facie would appear to have been based upon views which were bona fide held by the Board, factually sustainable and not unreasonable.  
	It is clear however from the decision of Barr J. in Tiernan -v- North Western Regional Fisheries Board, (1997) 2 I.R. 104 that an opinion formed or a view reached with a view to exercising a statutory power must be formed or reached after the application of fair procedures to the consideration of the exercise of the power.
	In the Tiernan case Barr J. considered the power conferred by Section 159 of the 1959 Act upon fisheries boards to issue salmon dealers licences and salmon exporters licences to persons to whom Certificates of Fitness to hold such licences have been issued by a District Judge pursuant to the provisions of Section 158 of the said Act.
	Whilst the procedure required by the 1959 Act for the issue of salmon dealers and exporters licences is not identical to the procedure required by the same Act for the appointment of a waterkeeper, I take the view that the principles as to fair procedures which have been set out by Barr J. in that case are helpful to the consideration of the facts of the instant case. 
	In Tiernan the Fisheries Board was the authority which had what was described as a "permissive and not mandatory" power to issue licences after the issue by a District Judge of a Certificate of Fitness.  In the instant case the District Judge is authorised to confirm the appointment of a waterkeeper who may not act in that capacity until such confirmation (see Section 294(2) of the 1959 Act) but the District Judge is precluded from confirming the appointment unless and until the Applicant has first been issued by the Fisheries Board with a Certificate of Suitability.
	In Tiernan Barr J. expressly held that	 ".... in considering applications from traders for salmon dealers licences, fisheries boards are not conducting a purely administrative function but are also engaged in a quasi-judicial process".  
	He based that conclusion upon his finding 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.... 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."
	
	Manifestly the decision of the Board in the instant case is central to the confirmation of the Applicant's appointment as a waterkeeper and accordingly I am satisfied that in considering the Applicant's request for a Certificate of Fitness to act as a waterkeeper the Board was engaging not just in an administrative function but also in a quasi-judicial process and that accordingly the principles of fair procedures and the duties of the Board which were identified by Barr J. in the Tiernan case apply to the consideration by the Board of the Applicant's request for a Certificate of Fitness to act as a waterkeeper.  
	On the evidence which has been adduced in this case it is abundantly clear that information came into possession of the Board which was adverse to the Applicant and that the Board's decision was significantly influenced by that information.  The Applicant was not invited to respond to this information and was not given the opportunity to make his case in favour of his application having regard to the information which had come into the possession of the Board and whilst submissions made by or on behalf of the Applicant made in the knowledge of and in response to the information which had come into the possession of the Board might well have had no effect upon the Board's ultimate decision, I am satisfied that the principles of constitutional justice which have been identified above required that the Applicant be given an opportunity to make such submissions to the Board before the final decision on his application was made.  
	It could perhaps be argued that, notwithstanding the foregoing, the evidence of the Applicant's unsuitability for appointment as a waterkeeper which was before the Board was so overwhelming as to render the exercise of this Court's discretion inappropriate in this case but I do not believe that it is the function of this Court to reach conclusions as to how the Board would necessarily react to submissions made to it on behalf of individual applicants for relief of one kind or another and it is not to be overlooked that in the course of the decision-making process in this case, one member of the Board (Mr. Tansley) was clearly uneasy about the decision and, having sought additional information in relation to the application, heard only the adverse information and no submissions on behalf of the Applicant.
	In the light of the foregoing I am forced to the conclusion that since the Board made its decision largely based upon information supplied to it which was adverse to the Applicant and since the Applicant was given no opportunity to respond to that information in support of his application, the Board inadvertently failed in its obligation to apply fair procedures to its consideration of the Applicant's request.
	Accordingly, the Board's decision is unlawful and must be quashed and the Applicant is entitled to an Order requiring the Board to reconsider his application in accordance with the procedure set out herein.