Posted Friday, October 13, 2017
Judicial review proceedings must commence within six months
This was decided and delivered by Mr Justice Mark Chetcuti on 3 October, 2017, in Malta Towage Limited -v- Director of Fisheries. 

In the plaintiff company’s application, the company explained that it owns a vessel, the MV Ernest E. Pierce, which had a fishing licence which was valid from 15 May, 2015, to 4 May, 2016. On 15 June, 2015 the Director of Fisheries suspended the licence, because according to the defendant, the vessel was fishing beyond 12 nautical miles without the necessary authorisation and also it was alleged that the captain was not registered and licensed.

The licence was suspended in terms of the Fisheries Conservation and Management Act. The plaintiff company argued that none of the circumstances listed in Article 12(4) of the Fisheries Conservation and Management Act, which allowed suspension of the licence, existed in the case of the plaintiff company and the Fisheries Department failed to take further action as the law dictated. On 15 March, 2016, the company wrote to the department asking it to reactivate the licence. On 14 April, 2016, a negative reply was sent, however, the department did not give any reasons for refusing the reactivation.

After much pushing and tugging, the plaintiff company received an email on 20 April, 2016, with a list of requirements necessary for reactivation. The company then wrote that in fact all the conditions were satisfied and there was no need to obtain additional certificates, when these were given when the licence was issued. The department stuck to its guns and insisted all the conditions had to be adhered to. The company asked the court to declare that the refusal to lift the suspension of the licence was ultra vires and therefore, the department acted beyond its powers. The company invited the Court to declare that the department acted in bad faith, which caused damages.

The Department of Fisheries filed a statement of defence, where amongst others, it was claimed that the vessel was not the property of the plaintiff company and therefore, it did not have any judicial interest to institute this action. Furthermore, the department raised the plea that in terms of Article 469A(1)(b) of the Code of Organisation and Civil Procedure, the action should have been instituted within six months. The letter of 14 April, 2016, was merely a repetition of a letter of what was already said. The department also held that this action could not be successful because the letter of 14 April, 2016, cannot be construed to be an administrative act.

The Court held that this case was one of judicial review, where it was being alleged that a licence to operate a vessel was suspended on 15 June, 2015. The company made a request for the licence to be reactivated on 15 March, 2016. On 20 April, 2016 a list of conditions was sent, amongst which there were some which were new. Although the company tried to comply, the Department refused to reactivate the licence. 

Mr Justice Chetcuti dealt with whether the action could have been instituted because six months had lapsed in terms of Article 469(3) of the Code of Civil Procedure and Organisation. According to subsection 3 of the Article, an administrative act is amongst others, a decision made by a public authority and the time within which it may be attacked, and the six months period cannot be suspended nor interrupted.

This was held in Maria Victoria Borg et -v- the mayor and secretary in representation of Pieta local council. The plaintiff company held that the department’s decision was taken on 14 April, 2016. The Court disagreed. The letter made reference to the previous letter of suspension of 28 May, 2015. Therefore, the administrative act was taken in May 2016, and not in April 2016. The fact that in April 2016, additional reasons were given for the suspension, cannot be considered as a new administrative act. In that letter, the director merely confirmed his previous decision. Therefore, the action was filed after the six months period.

The Court turned down the action.


 
Dr Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates  
 
This article may also be accessed on Malta Today. 
 
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