Barnes and Barnes v the Minister of the Environment 1991 Civil Jur No 45 1991 Civil Jur No. 280

• Jurisdiction: Bermuda
• Judgment Date: 27 June 1994
• Date: 27 June 1994
• Docket Number: Civil Jurisdiction No. 1991 : 45 and 1991 : 280
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction No. 1991 : 45 and 1991 : 280

BETWEEN:

Eugene Barnes SR.

First Plaintiff

and

Michael Barnes

Second Plaintiff

and

The Minister of the Environment

Defendant

Mr. M. Mello, Q.C. for the Plaintiffs

Mr. P. Holder for the Defendant

Franklin v Minister of Town and Country PlanningELR [1948] AC 87

Madeiros v Minister of the Environment 1988 Civil Appeal No. 7

Council of Civil Service Unions v Minister for the Civil ServiceUNK [1984] 3 All ER 935

Breen v Amalgamated Engineering UnionUNK [1971] 1 All ER 1148

R v Herfordshire CC ex parte Cheung, The Times 4 April 1986

R v City of London Court Judge and PayneELR [1892] 1 QB 273

R v Devon CC ex parte Baker, The Times 21 January 1993

Attorney General of Hong Kong v Ng Yuen ShiuUNK [1983]2 All ER 346

R v Secretary of State for the Home Department ex parte Asif Mahmood KhanUNK [1985] 1 All ER 40

Re 56 Denton Road, TwickenhamELR [1953] 1 Ch 51

R vi Liverpool Corp, ex parte Liverpool Taxi Fleet Operators Assn.UNK [1972] 2 All ER 589

R v Board of Inland Revenue ex parte MFK Underwriting Agencies LtdUNK [1990] 1 All ER 91

IRC v National Federation of Self Employed and Small Businesses Ltd.UNK [1981] 2 All ER 93

Farias v Malpas 1992 Criminal Appeal No. 3

R v Criminal Injuries Compensation Board ex parte LainELR [1967] 2 QB 864

R v Secretary of State for Health ex parte US Tobacco International IncUNK [1992] 1 All ER 212

Cinnamond v British Airports AuthorityUNK [1980] 2 All ER 368

R v Secretary of State for the Home Department ex parte RuddockUNK [1987] 2 All ER 518

Findlay v Secretary of State for the Home DepartmentUNK [1984] 3 All ER 801

R v Hull Prison Board of Visitors ex parte St. Germain (no.2)UNK [1979] 3 All ER 545

R v Secretary of State for the Home Department ex part HarrisonUNK [1988] 3 All ER 86

Giant Foods Ltd v Liquor Licensing Auhority 1992 Civil Appeal No. 12

Associated Provincial Picture Homes Ltd v Wednesbury [1947] AER 680

Padfield v Minister of Agriculture, Fisheries and FoodUNK [1968] 1 All ER 694

R v Secretary of State for the Home Department ex parte BrindUNK [1991] 1 All ER 720

Fisheries Regulations 1972, r. 21(c)

Fish pots ban — Act fairly — Legitimate expectation — Manifest unreasonableness — Ex gratia payment — Misconduct of plaintiffs — Proportionality

JUDGMENT

APPLICATION FOR RELIEF

By Originating Summons the Plaintiffs sought relief against the Defendant—

• 1. A declaration that the decision of the Defendant made on the 29 June 1990 and set out in the letter of her Permanent Secretary of the same date be guashed.

• 2. A declaration that the Plaintiffs are entitled to the compensation promised to the Plaintiffs in the Defendant's letter dated 25 January 1990 in the amount of $49,525.00 together with interest to the date of payment and an order that the same be paid to the Plaintiffs forthwith, together with $6,225.00 by way of compensation for fishing gear surrendered to the Defendant's Ministry together with interest thereon from 26 April 1990 to date of payment.

• 3. That provision be made for the costs of this application.

• 4. Such further order and other relief to be granted as this Court may think fit.

Since the Defendant on 25 July 1991 paid to the Plaintiffs' Attorneys the sum of $6,225.00 representing the compensation due (without interest) for the surrender of their fish pots and equipment under the 1990 Fisheries Management Programme, the Plaintiffs now seek only interest on the sum of $6,225.00 from 26 April 1990 to date.

The relief sought are on the grounds that the Defendant—

• (a) failed to exercise her discretion fairly and impartially;

• (b)in exercising her discretion, she wrongfully relied on the alleged misconduct of the Plaintiffs;

• (c) exercised her discretion in a manner that was disproportionate to the alleged misconduct of the Plaintiffs;

• (d) exercised her discretion in a manner that was disproportionate to the objective which she sought to achieve;

• (e) in exercising her discretion, she did not treat the Plaintiffs in a manner similar to the manner in which she treated others in similar circumstances;

• (f) in exercising her discretion, she failed to recognize the Plaintiffs' legitimate expectations of receiving compensation; and

• (g) in exercising her discretion, she came to a conclusion that was wholly unreasonable.

FACTS

By circular letter to all licensed pot fishermen dated 25 January 1990, the then Minister of the Environment, the Honourable Ann F. Cartwright DeCouto (hereinafter referred to as ‘the Defendant’) wrote to Mr. Eugene Barnes Sr. and Mr. Michael Barnes (the First and Second Plaintiffs respectively) informing them that she had decided to close the fishpot fishery as of 31 March 1990. At page 2 of her letter the Defendant stated:

‘The Government of Bermuda is under no obligation to compensate any licence holder; however, in view of the significant contribution made by yourself to one of our few primary industries, the Government has agreed that an ex-gratia payment be made to you. The amount of this ex-gratia payment has been arrived at by a detailed analysis of the catch and effort statistics as these relate to fish pots submitted in respect of your pot fishing vessel licence. As it is recognised that effort to some extent is based on the numbers of pots each fisherman has been licenced to use, the sum of pot hauls, hours and weight has, in each individual case, been reduced to a per pot basis. In this way, all fishermen can be recompensed on an equable basis. These calculations have been made using the information reported for three years (1986, 1987 and 1988) and in this way a specific payment may be allotted to each fisherman.

With specific regard to yourself, based on your statistical submissions, our preliminary calculations show that you are entitled to an ex-gratia payment of $49,525.00.

In addition to this amount, Government is prepared to offer some compensation for your pot specific gear; namely, your allotment of fish pots and hauling gear (winch). Details of these payments are attached for your information.

I trust that you will find this an equitable settlement and Government thanks you for your continued commitment to the effective management of the Bermuda marine resource.’

On 1 March 1990, the Defendant wrote to the Second Plaintiff, Michael Barnes, as follows:

‘I have been informed that on several occasions during the month of February, 1990, you did knowingly and wilfully contravene the terms and conditions of the licence issued to you to use fish pots F0083/0144).

In view of the foregoing and by virtue of the powers conferred on me by Regulation 17(6) in respect of the use of fish pots, I hereby inform you that your licence to use fish pots F0083/0144 is revoked forthwith.

A consequence of the revocation of this licence is that you cannot lawfully use any fish pot. Any Pot which you may have been working can only be retrieved in the presence of, and under the direction of, a Fisheries Inspector. I should be obliged if you would contact the Division of Fisheries in respect of this matter as soon as possible.

Furthermore, I require that you remove the ‘F’ prefixed of your licence from your vessels and replace such with the prefix ‘N’ upon receipt of this notification.’.

Upon application made on behalf of the Second Plaintiff to this Court, the then Chief Justice on 7 March 1990 (in Case No. 95 of 1990), on the ground that the Defendant did not give the Second Plaintiff an opportunity to be heard nor consider his position before making her decision, which was contrary to the rules of natural justice, ordered the following:

‘1. That the Applicant is hereby granted leave to issue an Originating Summons seeking relief by way of prohibition and/or certiorari and/or mandamus in respect of the decision of the Minister of the Environment made the 1st day of March, 1990.

2. That the purported Order made by the Minister on 1st March, 1990 for the delivery up of his fishpots to the Ministry by the Applicant be stayed pending determination of his application.

3. That the Minister's purported 1st March, 1990, revocation of the Applicant's fishpot licenses F0083 and F0144 be stayed pending determination of this application.

4. That the Minister's purported 1st March, 1990 order #at the Applicant remove the ‘F’ prefixes from his licenses and vessels be stayed pending determination of this Application.

5. That the said Originating Summons be served upon the Attorney General on behalf of the said Minister.’.

Subsequently on 13 March 1990 the Defendant, through her legal representative, indicated that she would not be taking any further steps in Case No. 95 of 1990 and would allow the Chief Justice's order of 7 March 1990 to stand.

On 8 March 1990, the Permanent Secretary to the Defendant, Dr. James Burnett-Herkes, wrote to the Plaintiffs as follows:

‘Under the terms and conditions of your licence to use fish pots, issued under Regulation 17 of the above-mentioned Regulations for the year 1989/90, it is stated that your limit is for the use of no more than 30 fish pots (copy attached).

It has been observed by Fisheries Inspectors that you have been using a substantial number of pots in excess of the numerical limit of 30.

I refer to my Minister's letter dated 25th January, 1990 with regards to her intention to close the fish pot fishery. As stated in this letter, it is the intention of Government to offer an ex gratia payment and compensation for pot specific gear to those fishermen who are presently licensed to use fish pots. It should go without saying that payments will be made to those fishermen who are abiding by the terms and conditions of their licenses and the regulations governing the use of fish pots.

By reason of the breaches mentioned above, the Minister is minded not to pay the ex...