The Minister of the Environment v Barnes et Al

• Jurisdiction: Bermuda
• Judge: Roberts. P.
• Judgment Date: 25 November 1994
• Neutral Citation: BM 1994 CA 24
• Docket Number: Criminal Appeal No. 16 of 1994
• Court: Court of Appeal (Bermuda)
• Date: 25 November 1994

Court of Appeal

Roberts, P., da Costa, J.A.Astwood, J.A.

Criminal Appeal No. 16 of 1994

The Minister of the Environment

and

Barnes et al

Appearances:-

Michael Tugendaht, Q.C. & Wilhelm Bourne for the Appellant

Kieron Unwin for the Respondents

Practice and procedure - Trial judge found that the appellant's discretion had never been properly exercised according to law — Appellant appealed — Whether the learned judge erred — Appeal was allowed.

1 Upon Hearing Counsel for the appellant and for the respondents in the appeal.

2 And upon hearing Counsel for the said parties on the matter of costs of the Appeal–

3 It is hereby ordered that:

4 1. The appeal is allowed.

5 2. The appellant is awarded costs of the appeal and costs of the hearing in the Supreme Court, to be taxed or agreed, with a certificate for two Counsel in this court.

6 3. Reasons for allowing the appeal will be given on a date to be notified

7 Dated the 16th day of November, 1994.

8 Hon. Justice Sir Denys Roberts, President

9 Hon. Mr. Justice Harvey daCosta, J.A.

10 Hon. Justice Sir. James R. Astwood, JA

Preliminary

Roberts. P.

11 At the conclusion of the hearing before us, we allowed the appeal and announced that we would give our reasons later.

12 The respondents (who will be referred to as “the plaintiffs”) sought, by originating summons against the appellant (“the Minister”) declarations, by way of judicial review, that:–

• a) the decision of the Minister of 29th June, 1990 be quashed;

• b) they were entitled to the compensation promised to them in the Minister's letter of 25th January, 1990, in the amount of $49,525, plus interest to the date of payment, payable in addition to $6,225 paid as compensation for fishing gear surrendered to the Ministry of the Environment.

13 The Minister paid $6,225 to the plaintiffs' attorneys for the surrender of fishing equipment on 25th July, 1991. The plaintiffs therefore did not pursue any remedy in respect of this sum.

14 The declarations were sought on a number of grounds, which will be considered later, insofar as these are relevant to the appeal. The judge, after hearing counsel for both parties, delivered judgment on 27th June, 1994. His conclusion was expressed as follows:–

“In the light of the foregoing, I am of the opinion that the Minister's discretion has never been properly exercised according to law and I therefore order that:–

• a) the decision of the Defendant made on 29th June, 1990 as set out in the letter of her Permanent Secretary of the same date be quashed;

• b) that the case be remitted to the Minister with a direction that the Minister consider the complaint of the Plaintiffs according to law.

15 The Minister entered a notice of appeal, dated 2nd August, 1994. It contained the following grounds of appeal, which were argued both in a written skeleton and in oral submissions:–

“The learned judge in his decision erred as follows (the references to page numbers are to pages in his judgment):–

• 1. At p. 15-16, in comparing the Plaintiffs' position with that of six commercial fishermen who had been convicted of offences against the Fisheries legislation,(whose circumstances were not similar, for the reason given by Dr. Burnett-Herkes in his affidavit paras. 20 to 22, 25 and 29) and in concluding from such comparison that the defendant failed to exercise her discretion fairly and impartially and in a manner similar to the way she treated others;

• 2. At p. 17, in failing to have regard to reg. 17(6) of the Fisheries Regulations 1972 as then in force, which expressly empowered the Minister to revoke a licence to use fish pots where the licensee fails to comply with a condition of the licence (regardless of whether or not that failure amounts to an offence);

• 3. At p. 17, in holding that the Minister was not entitled to consider, or form a view upon, the evidence that the plaintiffs had been in breach of the Fisheries Regulations, 1972 in the absence of any conviction of an offence by a court of law, and in holding that the presumption of innocence referred to in section 6(2)(a) of the Constitution so provides;

• 4. At p. 19, in construing Reg. 21 (c) to mean that the words “without a licence to do so by the Minister” qualified only the prohibition on the removal of fish from the fish pot, whereas these words (and the words ‘without the consent of the owner of the pot’) qualify both limbs of Reg. 21(c);

• 5. At p. 19, in holding that if the words of an Act are clear the court must follow them, even though they lead to a manifest absurdity, whereas it is the duty of the court to avoid an absurd construction and to give a purposive construction to legislation: Fothergill v. Monarch Airlines [1981] A.C. 251, 280;

• 6. At p. 19, in purporting to find as a fact, on contested evidence which had not been the subject of cross-examination, that the Second Plaintiff had the authority of the owners of the fish pots which he admitted hauling (see Dr. Burnett-Herkes para. 15, 17);

• 7. At p. 19, in holding that the Plaintiffs' licence to use fish pots permitted him to use his vessel to haul up other fishermen's fish pots, notwithstanding that the number of fish pots the Second Plaintiff thereby used exceeded the number which his licence permitted him to use:

• 8. At p. 33 to 35, in taking into account that the Minister's letter of 25th January, 1990 did not expressly state that the proposal of compensation was subject to the condition that the plaintiffs continued to comply with the law and with the terms of their licence, and in stating that the letter of 25 January, 1990 created an entitlement that was not dependent on the happening of any future event, and that the letter of 8th March, 1990 was inconsistent with the letter of 25th January, 1990;

• 9. At p.33 to 35, in failing to take into consideration that the purpose of the Minister's proposal was to compensate fishermen for the loss of income from future fishing with fish pots (which was to be banned after 31st March 1990). If between 25 ^th January and 31 ^st March, 1990 a licensee were so to act that the Minister would have been entitled to revoke the licence or not to renew it, there is nothing for which the Minister could lawfully or reasonably have compensated him (c.f. Burnett-Herkes affidavit para. 33). This should have been understood by any reasonable person in the position of the Plaintiffs;

• 10. At p. 35, in holding that, the Minister would not be acting in breach of her duty or contrary to the public interest in implementing her proposal to the Plaintiff, if he were in breach of the conditions of his licence, or had broken the Fisheries Regulations;

• 11. At p.35, in holding that the Minister had acted out with the parameters of her letter of 25th January, 1990;

• 12. At PF 20 to 37 and p. 39, in failing to take into consideration that a licensee could have no legitimate expectation of compensation for non-renewal of a licence in circumstances where he had failed to comply with the conditions of the current licence;

• 13. At p. 37, in holding that the withholding of the ex gratia compensation was disproportionate, and in failing to take into consideration the undisputed evidence (in Dr. Burnett-Herkes's affidavit pare. 29) that in the only case where a fisherman was shown to have used more fish pots than allowed by his licence, the then Minister revoked his licence and refused his application for a licence to use fish pots in subsequent years. By Reg. 2(2) and (3) the Minister is required to take into account in deciding whether to issue a licence considerations relating to the protection of fisheries. If there had been no general ban on fish pots, it was the policy of the Minister that persons such as the Second Plaintiff would not have been able to renew their licences: see Dr. Burnett-Herkes, paras 3 and 29;

• 14. At p. 39, in concluding that the Minister took into account allegations which she ought not to have taken into account, that she treated the plaintiffs unfairly compared with other fishermen, that she disregarded relevant considerations and that her decision was unreasonable and irrational.

• 15. In failing to exercise his discretion not to grant judicial review, given that the Second Plaintiff had used his vessel for hauling fish pots in circumstances where he was not complying with the conditions of his licence (whether or not the fish pots belonged to other fishermen and he had their permission): an application to the court for relief may be refused by reason of the unreasonable or unmeritorious conduct of the applicant, (including the unlawful conduct of the applicant, even where he has been acquitted see Gray v. Barr [1971] 2 Q.B. 554, followed in R. v. Chief NI Commr. ex par te Connor [1981] 1 Q.B. 758).

The Facts

16 The Minister sent a circular letter to all licensed pot fishermen, among whom were the plaintiffs, informing them that she had decided to close the fish pot industry from 31st March, 1990. At page two of this letter, the Minister 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 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.

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.

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

17 On 1st March, 1990, however, the...