The High Court refused a judicial review challenge by Carbery Fishing Limited and Fintra Trawling Company Limited over the handling of their appeals concerning mackerel fishing authorisations for two vessels. The court concluded that the first appeals officer’s three-year appointment had expired, and that the companies could have their appeal heard by another, validly appointed officer.
The judgment was delivered by Mr Justice Hedigan on 28 June 2012. The companies had appealed the granting of mackerel authorisations for the MFV Atlantic Quest and MPV Eternal Dawn on 31 March 2011. A preliminary objection was raised that the first appeals officer lacked jurisdiction because the appeals concerned authorisations granted by the Minister, rather than licences issued by the licensing authority. The officer initially decided to refer a question of law to the High Court, but later declined to state a case, saying his appointment warrant had expired.
The companies argued that the State respondents were barred from disputing the officer’s appointment, and that the Minister’s conduct and public website listing gave them a legitimate expectation that he was validly appointed. They also relied on a Supreme Court decision concerning retired judges who continued to sit after retirement.
The court rejected those arguments. It said an earlier ruling by Mr Justice Cross had only prevented the respondents from arguing that the companies should have used the special judicial review procedure in the Fisheries (Amendment) Act 2003, while also disputing the officer’s appointment. It did not prevent them from maintaining that he was not validly appointed.
The judgment distinguished the retired judges case because the fisheries legislation limited an appeals officer’s term to three years and required reappointment by the Minister. The officer had been appointed in 2003 and again in 2006, but not reappointed after that. The court held that he could not continue in office informally after his term expired, and that a public authority could not create jurisdiction through estoppel or legitimate expectation.
The respondents had offered to send the companies’ appeal to a fourth respondent, whom the judgment describes as a validly appointed appeals officer with statutory power to hear it. The court considered that a reasonable available remedy and said the requested judicial review relief appeared futile: the same legal questions could reach the High Court whether the appeal proceeded before the former officer or the replacement. It refused all the relief sought, including orders that would have compelled a reference to the High Court or stopped the rehearing. The judgment did not determine the merits of the fishing authorisation appeal.