Determination of Sea Fishing Licence Appeal Under Section 16 of the Fisheries (Amendment)

DETERMINATION OF SEA FISHING LICENCE APPEAL UNDER SECTION 16 OF THE FISHERIES (AMENDMENT) ACT 2003

APPELLANT: Kevin Kielthy, Rathronan, Bridgetown, Co. Wexford

RESPONDENT: Department of Communications, Marine and Natural Resources.

REFERENCE NUMBER: 546 B

This is an Appeal taken by the Appellant against a decision taken by the Respondent to refuse his application for an inshore sea fishing licence pursuant to the Scheme for the Licensing of Traditional Pot Fishing Boats in the Irish Inshore Fleet.

I have considered the documentation that has been furnished upon me, namely the Notice of Appeal dated 20 December 2006 together with all supporting documentation and exhibits, the ILASC file, the inter partes correspondence, correspondence between each party and this Appeals Officer and I have considered the oral submissions raised by each party at the oral hearing itself, which took place on Wednesday 1 August 2007 in the Bar Council Conference Room, Church Street Building, Church Street, Dublin 7

Decision

The Appeal is refused

History of Case

The Applicant had a previous appeal, which was determined by this Appeals Officer. That determination issued on 23 August 2006. The Appellant in that appeal was successful as this Appeals Officer found that the basis upon which the licence was refused (which was on the criterion that the Applicant was not the owner of the vessel in respect of which the licence was sought) was flawed in that there was a clear error made.

The vessel, for which the Appellant sought the licence, was in the process of being built but as yet was not within the registered ownership of the Appellant. The Appellant should have made the application in respect of the vessel that was registered and owned by him at that time, namely the MFV Gallilee, which was due to be decommissioned due to its state of disrepair. This Appeals Officer found that had he done so the Licensing Authority would probably have found that he met the criterion of being the owner of the vessel.

In any event, the Appellant was successful and this was communicated to him and the Respondent by way of determination dated 23 August 2006.

By way of letter dated 28 August 2006 the Appellant received from the Respondents a second refusal of his application for a sea fishing licence and offered an Appeal option against this decision.

The reason cited by the Respondent was the fact that he had another vessel registered, namely the Regina Arran and this was registered to the Appellant and was in the polyvalent segment of the Irish fleet. Under the scheme those who have or who have had a boat licensed or registered since January 1990 other than the vessel for which the licence is being sought are expressly excluded.

At this time the Appellant contacted this Appeals Officer by way of telephone raising the complaint that having been successful in his appeal the Respondents were now attempting to refuse his application on a second and entirely different basis. He contended that this was a type of abuse of process. This Appeals Officer wrote to the Appellant by way of letter dated 18 September 2006 advising the Appellant that the appeal had been determined and that as such her role had come to an end. The only option then available to the Appellant was to bring a second appeal.

The Appellant sought to appeal the second decision to this Appeals Officer and requested an oral hearing. He wrote a letter to this Appeals Officer outlining the basis for his appeal. This was dated 20 December 2006.

The oral hearing was duly heard on 1 August 2007

Reason for the Decision

The basis for the Appeal is that the process undertaken by the Respondents was unfair. The process was as follows:

The Respondents refused the Appellant licence, that refusal was then overturned by the Appeals Officer and two days following receipt of that appeal the Respondents indicated their refusal to grant the licence on a separate and different ground.

It appears to be accepted by the Appellant that he does not meet the eligibility criterion as set out in the Inshore Pot Fishing Scheme namely that he was the registered owner of another vessel within the polyvalent fleet at the time of his application and this category of people are expressly excluded from the scheme.

Therefore the only matter before me to determine is whether the Respondents have the jurisdiction to refuse an application for a licence on a separate and distinct ground from that which it had previously refused an Appellant in circumstances where the first refusal is overturned on Appeal. The question raises issues as to whether this manner of dealing with Appellants is an abuse of process.

The law on what constitutes an abuse of process is clear. If the Respondent acts in a manner that is oppressive, there will be a remedy available to an Applicant. Similarly, if the Respondents were issuing a decision on the same basis as that which had already been overturned, that would constitute an abuse of process.

However I cannot find that the Respondents in deciding against the Appellant on the separate and different basis than that which had been overturned by this Appeals Officer is of itself an abuse. It obviously would be preferable that if a decision was being taken by the Respondents, that all the criteria had been considered and adjudicated upon by them. This would allow any subsequent appeal to finalise matters but I do not consider its failure to do this is either impermissible under the scheme or of itself an abuse of process.

Pascal Hayes on behalf of the Respondent gave evidence at the oral hearing that the process was onerous on the Respondent because of the large numbers of applicants. He stated that the process was that once an Applicant failed to meet one criterion, they were informed of the refusal to grant the licence. If they also failed to meet another criterion, this may not be noticed until the file was being re assessed, which would only in fact occur in the type of circumstances such as the present case, namely that the original decision was overturned. He stated that is was probably the case that many of those appellants who were refused a licence on one of the criteria, might well have failed other criteria but this would only some to light if an appeal was brought. In other words, the process of one refusal is neither comprehensive nor exhaustive of the criteria of eligibility.

I accept this process and find that if there was a demand on the Respondent, [which there is not, neither in the scheme or in the 2003 Fisheries (Amendment) Act] to deal with each application on an exhaustive basis, there would be unnecessary delays in the refusal of licences being communicated, for which the Respondent might well be criticised.

The Appellant contended, at the oral hearing, that the Respondents, prior to the first refusal of the licence, knew of the fact that the Appellant owned a second vessel and therefore by its failure to address this at the first refusal stage is an act of acquiescence or acceptance or manner of dealing which the Respondent should be estopped from subsequently denying.

For reasons already cited, this Appeals Officer is not persuaded by this contention and even if the Respondent were aware of ineligibility on a second ground they are not mandated to cite all grounds of refusal, unless of course there are a number of refusals all on separate grounds which might amount to an abuse of process. But two refusals does not constitute an abuse of process.

For the reasons cited above, this appeal fails.

______

Emile Daly B.L.

Law Library

Four Courts

Dublin 7

04 September 2007